                                                                            FILED
                            NOT FOR PUBLICATION                              JAN 10 2013

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




                            FOR THE NINTH CIRCUIT



FRANK DARELL VAUGHN,                             No. 11-55828

              Petitioner - Appellant,            D.C. No. 3:06-cv-01483-JM-
                                                 WMC
  v.

J. S. WOODFORD; BILL LOCKYER,                    MEMORANDUM *

              Respondents - Appellees.



                    Appeal from the United States District Court
                        for the Southern District of California
                  Jeffrey T. Miller, Senior District Judge, Presiding

                            Submitted January 7, 2013 **
                               Pasadena, California

Before: KOZINSKI, Chief Judge, McKEOWN and M. SMITH, Circuit Judges.

       Frank Vaughn appeals the district court’s denial of his petition for habeas

corpus. Vaughn argues that there was no manifest necessity for a mistrial in his




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
first trial because he was willing to waive his attorney’s asserted conflict of

interest.

       Under AEDPA, the question before us is “not whether the trial judge should

have declared a mistrial. It is not even whether it was an abuse of discretion for

her to have done so—the applicable standard on direct review.” Renico v. Lett,

130 S. Ct. 1855, 1862 (2010). Rather, the question is whether the California Court

of Appeal’s determination that the trial court did not abuse its discretion was

“based on an unreasonable determination of the facts” or was “contrary to, or

involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d);

Renico, 130 S. Ct. at 1862. Under Supreme Court precedent, in cases where a

mistrial is ordered over a defendant’s objection, retrial is permissible only if there

is “manifest necessity” for the mistrial. Arizona v. Washington, 434 U.S. 497, 505

(1978). Although a defendant may waive the right to conflict-free counsel,

Holloway v. Arkansas, 435 U.S. 475, 483 n.5 (1978), a trial court has “substantial

latitude” to refuse a defendant’s waiver of conflicts of interest where there is an

actual or potential conflict. Wheat v. United States, 486 U.S. 153, 163 (1988).

Courts have “an independent interest in ensuring that criminal trials are conducted




                                           2
within the ethical standards of the profession and that legal proceedings appear fair

to all who observe them.” Id. at 160.

      Faced with Vaughn’s attorney’s assertion that he had an “obvious conflict”

and could not go forward, the trial court carefully considered Supreme Court and

other precedent, appointed conflicts counsel (who agreed with Vaughn’s original

attorney that a mistrial was in Vaughn’s best interest), heard from the parties

multiple times, and considered alternatives to a mistrial. The California Court of

Appeal’s determination that the trial court “had the discretion to reject Vaughn’s

proffered waiver of his right to conflict-free counsel and to declare a mistrial based

on legal necessity, even over Vaughn’s objection” was neither “based on an

unreasonable determination of the facts,” nor was it an “unreasonable application

of . . . clearly established Federal law.” 28 U.S.C. § 2254(d)(1).

      AFFIRMED.




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