                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                   August 30, 2011
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
                                 TENTH CIRCUIT



 TOD A. PABST,

               Petitioner - Appellant,                    No. 10-3256
          v.                                               (D. Kansas)
 DAVID MCKUNE, Warden, Lansing                  (D.C. No. 5:08-CV-03258-SAC)
 Correctional Facility; STEPHEN SIX,
 Kansas Attorney General,

               Respondents - Appellees.


                            ORDER AND JUDGMENT *


Before KELLY, HARTZ, and HOLMES, Circuit Judges.


I.    INTRODUCTION

      Tod Pabst (Defendant), an inmate in a Kansas correctional facility, seeks

habeas relief under 28 U.S.C. § 2254 on the ground that his trial was rendered

fundamentally unfair by the involvement of a private prosecutor who had a

conflict of interest. He further alleges that the failure of both trial and appellate


      *
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
counsel to challenge the use of the private prosecutor denied him effective

assistance of counsel. The United States District Court for the District of Kansas

denied relief but granted a certificate of appealability enabling Defendant to

appeal the denial. See 28 U.S.C. § 2253(c)(1)(A). Defendant filed a timely

appeal and we have jurisdiction under 28 U.S.C. §§ 1291 and § 2253. We affirm.

II.   BACKGROUND

      In March 1997, Defendant killed his fiancee. See Pabst v. State, 996 P.2d

321, 324 (Kan. 2000). A jury convicted him of murder but the conviction was

overturned on appeal. See id. at 331. The victim’s parents hired a private

attorney, Pedro Irigonegaray, under Kan. Stat. Ann. § 19-717 to assist the

prosecutor at the retrial. See Pabst v. State, 192 P.3d 630, 633 (Kan. 2008).

Although Irigonegaray was assigned the handling of several parts of the trial, the

state prosecutor controlled the case and “everything that Irigonegaray did on the

case was subject to [his] prior approval.” Id. at 634; see id. at 635 (state court

found that private prosecutor acted under “direct supervision” of public

prosecutor). The jury convicted Defendant of premeditated first-degree murder,

and he was sentenced to life imprisonment. See State v. Pabst, 44 P.3d 1230,

1232 (Kan. 2002). The Kansas Supreme Court affirmed his conviction. See id.

      Defendant sought state postconviction relief that challenged Irigonegaray’s

role in the second trial. See Pabst, 192 P.3d at 633. The state district court

denied relief and the Kansas Supreme Court affirmed. The supreme court ruled

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that Irigonegaray’s prosecutorial role conflicted with his role in representing the

decedent’s family in proceedings to terminate Defendant’s parental rights and

adopt the decedent’s child. But it concluded that the violation was not structural

error and the error was harmless. See id. at 637–40. It also held that Defendant

had not been deprived of effective assistance of either trial or appellate counsel.

See id. at 640–41.

III.   DISCUSSION

       The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

provides that when a claim has been adjudicated on the merits in a state court, a

federal court can grant habeas relief only if the applicant establishes that the

state-court 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 “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)(1), (2). As we have explained:

       Under the “contrary to” clause, we grant relief only if the state court
       arrives at a conclusion opposite to that reached by the Supreme Court
       on a question of law or if the state court decides a case differently
       than the [Supreme] Court has on a set of materially indistinguishable
       facts.

Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (brackets and internal

quotation marks omitted). Relief is provided under the “unreasonable

application” clause only if the state court identifies the correct governing legal

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principle from the Supreme Court’s decisions but unreasonably applies that

principle to the facts of the prisoner’s case. Id. (internal quotation marks

omitted). “Thus we may not issue a habeas writ simply because we conclude in

our independent judgment that the relevant state-court decision applied clearly

established federal law erroneously or incorrectly. Rather, that application must

also be reasonable.” Id. (internal quotation marks omitted.)

      Defendant’s first contention is that Irigonegaray’s conflicted role in his

murder trial violated constitutional due process. On this issue we need not rely

on AEDPA deference to the state court. We held in Erikson v. Pawnee County

Board of County Commissioners, 263 F.3d 1151 (10th Cir. 2001), that “the

participation of a privately-retained attorney in a state criminal prosecution does

not violate the defendant’s right to due process under federal law unless the

private attorney effectively controlled critical prosecutorial decisions,” id. at

1154. Here, both the state trial court and the federal district court found that

Irigonegaray did not have such control. Accordingly, this contention fails.

      Defendant next contends that his trial counsel’s failure to move for

Irigonegaray’s removal as an associate prosecutor denied him effective assistance

of counsel. To establish a claim of ineffective assistance of counsel, Defendant

must show (1) that his counsel’s performance fell below an objective standard of

reasonableness, i.e., that “counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment,”

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and (2) that Defendant was prejudiced by the deficient performance. Strickland v.

Washington, 466 U.S. 668, 687 (1984). The Kansas Supreme Court applied this

standard in reviewing Defendant’s claim. See Pabst, 192 P.3d at 640. It ruled

that Defendant had not overcome the strong presumption that his trial counsel’s

performance was adequate because there was no testimony on the issue by

Defendant’s trial counsel and trial counsel may well have preferred Irigonegaray

to an alternative who might have replaced him. See id. at 641. Defendant has not

persuaded us that the Kansas Supreme Court’s ruling was unreasonable, so we

affirm the district court’s rejection of this contention.

      Finally, Defendant contends that his appellate counsel was constitutionally

ineffective for failing to raise on direct appeal that Irigonegaray operated under a

conflict of interest at his second murder trial. But the Kansas Supreme Court

ultimately ruled in Defendant’s postconviction proceedings that the error created

by Irigonegaray’s conflict was harmless. Thus, if Defendant’s appellate attorney

had pursued the issue, he would have failed to obtain relief. Because Defendant

cannot show prejudice, we affirm the district court’s denial of relief on this

contention.




IV.   CONCLUSION

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      We AFFIRM the district court’s denial of Defendant’s application for relief

under 28 U.S.C. § 2254.

                                     ENTERED FOR THE COURT


                                     Harris L Hartz
                                     Circuit Judge




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