                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 07 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



RICHARD ANTHONY BREWER,                          No. 10-16980

              Petitioner - Appellant,            D.C. No. 2:06-cv-00382-GEB-
                                                 GGH
  v.

D. L. RUNNELS, Warden; ATTORNEY                  MEMORANDUM *
GENERAL OF THE STATE OF
CALIFORNIA,

              Respondents - Appellees.



                    Appeal from the United States District Court
                       for the Eastern District of California
                    Garland E. Burrell, District Judge, Presiding

                     Argued and Submitted February 14, 2012
                            San Francisco, California

Before: TASHIMA and SILVERMAN, Circuit Judges, and GARBIS, Senior
District Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Marvin J. Garbis, Senior District Judge for the U.S.
District Court for Maryland, sitting by designation.

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       Richard Anthony Brewer (“Brewer”) appeals the district court’s denial of his

28 U.S.C. § 2254 petition. Reviewing de novo, see Crittenden v. Ayers, 624 F.3d

943, 950 (9th Cir. 2010), we affirm.

       Brewer claims that his rights to due process and the effective assistance of

counsel were violated when the state trial court excluded him from an in camera

hearing regarding a potential conflict with his trial counsel and did not inform him

of the essential facts disclosed in the hearing. Although Brewer waived the

potential conflict before the state trial court, he now contends that the waiver was

invalid because he was not fully informed.

       The California Court of Appeal affirmed Brewer’s convictions and rejected

Brewer’s claims of denial of effective assistance of counsel and due process. The

state appellate court held that the trial court’s inquiries into the potential conflict

and waiver were adequate, and that Brewer received effective assistance of counsel

at all times.

       The federal magistrate judge, considering Brewer’s § 2254 petition prior to

the decision in Cullen v. Pinholster, 563 U.S. ___, 131 S. Ct. 1388 (2011), held an

evidentiary hearing to determine whether Brewer had been contemporaneously

aware of the essential facts that had been discussed in camera. Based upon that

hearing, the magistrate judge found that Brewer had sufficient knowledge at the


                                             2
time of the in camera hearing such that he knowingly waived the potential conflict,

and therefore, the waiver was valid. The magistrate found no cognizable prejudice,

and he recommended that the district court deny Brewer’s § 2254 petition. The

district court adopted the magistrate judge’s findings and recommendations and

denied the § 2254 petition.

       The Supreme Court stated in Cullen v. Pinholster, 131 S. Ct. at 1398, that

“review under 28 U.S.C. § 2254(d)(1) is limited to the record that was before the

state court that adjudicated the claim on the merits.” Thus, the magistrate judge

erroneously had conducted an evidentiary hearing. That error, however, was

harmless because we can, and shall, review the district court’s ultimate

determination, as directed by the Supreme Court, on the record that was before the

state court.

       As amended by the Antiterrorism and Effective Death Penalty Act of 1996,

§ 2254 limits a federal court’s power to grant habeas relief to a state prisoner.

Under § 2254(d)(1), a federal court shall not grant relief with respect to “any claim

that was adjudicated on the merits in State court proceedings unless the

adjudication of the claim . . . resulted in a decision that was contrary to, or involved

an unreasonable application of, clearly established Federal law, as determined by

the Supreme Court of the United States.” “Clearly established Federal law” under


                                           3
§ 2254(d)(1) “refers to the holdings, as opposed to the dicta, of [the] Court’s

decisions as of the time of the relevant state-court decision.” Williams v. Taylor,

529 U.S. 362, 365 (2000). “[A] habeas court must determine what arguments or

theories supported or, as here, could have supported, the state court’s decision; and

then it must ask whether it is possible fairminded jurists could disagree that those

arguments or theories are inconsistent with the holding in a prior decision of this

Court.” Harrington v. Richter, 562 U.S. ___, ___, 131 S. Ct. 770, 787 (2011).

      Reviewing the record that was before the California Court of Appeal, see

Pinholster, 131 S.Ct. at 1398, we hold that the state appellate court did not reach a

decision that was contrary to, or involved an unreasonable application of, clearly

established federal law as determined by the Supreme Court. The state appellate

court’s conclusion that Brewer had made a valid informed waiver of a potential

conflict of counsel and that, even if the waiver were unintelligent, or invalid, there

was no adverse effect on the outcome of Brewer’s trial, comports with controlling

Supreme Court precedents. See Mickens v. Taylor, 535 U.S. 162, 166 (2002);

Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); Kentucky v. Stincer, 482 U.S.

730, 745 (1987); Wood v. Georgia, 450 U.S. 261, 271 (1981); Holloway v.

Arkansas, 435 U.S. 475, 481 (1978); Johnson v. Zerbst, 304 U.S. 458, 464-65

(1938).


                                           4
       Accordingly, we affirm the district court’s denial of Brewer’s § 2254

petition.

       AFFIRMED.




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