     Case: 10-31230     Document: 00511867865         Page: 1     Date Filed: 05/25/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           May 25, 2012
                                     No. 10-31230
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

DEDRIC GRIFFIN,

                                                  Petitioner-Appellant

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:08-CV-5098


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Dedric Griffin, Louisiana prisoner # 417015, was convicted of first degree
murder and was sentenced to life in prison. State v. Griffin, 838 So. 2d 34, 36
(La. Ct. App. 2003). Griffin filed an application under 28 U.S.C. § 2254 in
federal court arguing that the trial court erred in allowing testimony from his
first trial to be entered into evidence at his subsequent trial. Griffin’s counsel
during the first trial, Jasper Pharr, was replaced for a conflict of interest because
he had represented Patrick Parker, the prosecution’s star witness, in an

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 10-31230

unrelated criminal matter. Griffin, 838 So. 2d at 36. Griffin asserted that
everything that occurred during that representation was tainted by ineffective
assistance of counsel resulting from the conflict of interest.
      The district court denied the application. It found that the state court had
determined correctly that Griffin had failed to show that the testimony had been
tainted by Pharr’s ineffective assistance.
      A federal court cannot grant habeas relief on any claim that was
adjudicated on the merits in a state court proceeding unless the state court’s
decision “was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United
States,” or if the state court decision “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d).
      To show the ineffective assistance of counsel by Pharr that is required to
support a claim that his first-trial testimony is tainted, Griffin must show (1)
that counsel’s performance was deficient and (2) that the deficient performance
prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984).
Prejudice is presumed if it is shown that an actual conflict of interest adversely
affected counsel’s performance. Cuyler v. Sullivan, 446 U.S. 335, 348 (1980).
This standard “is not properly read as requiring inquiry into actual conflict as
something separate and apart from adverse effect. An ‘actual conflict,’ for Sixth
Amendment purposes, is a conflict of interest that adversely affects counsel’s
performance.” Mickens v. Taylor, 535 U.S. 162, 172 n.5 (2002).
      Pharr represented Griffin at his first trial, which ended in deadlocked jury.
Griffin, 838 So. 2d at 36. During jury selection for Griffin’s second trial, Pharr
notified the trial court that he had represented Parker, the prosecution’s star
witness, in an unrelated criminal matter. Pharr was then replaced as Griffin’s
counsel. Id. The state court rejected Griffin’s claim using the Strickland
standard. It held that Griffin had not shown the decision to allow Griffin to

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                                   No. 10-31230

testify was deficient performance. Alternatively, given the strong evidence of his
guilt, Griffin suffered no prejudice.     Id. at 38-41.   The state court found
specifically that there was no evidence that the conflict of interest influenced
Pharr’s actions in the first trial because Pharr was unaware of the conflict. Id.
at 39-40. On appeal, Griffin has not shown that this was “an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 18 U.S.C. § 2254(d).
      Griffin cannot show an actual conflict of interest, see Mickens, 535 U.S. at
172 n.5, and cannot receive the benefit of a presumption of prejudice because he
cannot show that Pharr’s performance during the first trial was affected in any
way by the prior representation. Griffin’s inability to show an actual conflict is
because “Pharr did not even realize at the time of the first trial that he had
represented Parker in the earlier guilty pleas” and thus was unaware of the
prior representation of Parker until the first trial was over and jury selection
had begun for the second trial. Griffin, 838 So. 2d at 36, 39-40. It was not an
unreasonable application of Federal law, as determined by the Supreme Court,
to reject Griffin’s claim that his testimony from the first trial should have been
excluded from future proceedings because it had been tainted by ineffective
assistance of counsel because Griffin failed to demonstrate that Pharr’s actions
in the first trial constituted ineffective assistance.
      AFFIRMED.




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