                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 16 2010

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




                            FOR THE NINTH CIRCUIT



CLIFFORD CHEW,                                   No. 09-35801

              Petitioner - Appellant,            D.C. No. 6:07-cv-01330-AA

  v.
                                                 MEMORANDUM *
GUY HALL, Warden, TRCI,

              Respondent - Appellee.



                   Appeal from the United States District Court
                            for the District of Oregon
                   Ann L. Aiken, Chief District Judge, Presiding

                          Submitted December 9, 2010 **
                              Seattle, Washington

Before: O’SCANNLAIN and TALLMAN, Circuit Judges, and MOSKOWITZ,
District Judge.***




        *
             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).
        ***
            The Honorable Barry Ted Moskowitz, United States District Judge for
the Southern District of California, sitting by designation.
         Chew claims that the trial court violated his Sixth Amendment rights when it

appointed Earl Woods to advise his brother Rodney before Rodney testified.

However, Chew did not object to the court’s decision at trial, and he did not fairly

present his claim of trial court error on direct appeal to the Oregon Court of

Appeals or the Oregon Supreme Court. He failed to reference federal law or the

United States Constitution in his Balfour brief, and he cited no cases in support of

his claim that would have alerted those courts to the federal nature of his claim.

See Fields v. Waddington, 401 F.3d 1018, 1021 (9th Cir. 2005). Oregon law

therefore barred Chew from bringing this claim of trial court error in state post-

conviction review proceedings. See Palmer v. State, 867 P.2d 1368, 1373 (Or.

1994).

         Because Chew was procedurally barred from raising the issue in state post-

conviction review, his federal claim is likewise procedurally defaulted. Coleman v.

Thompson, 501 U.S. 722, 728–29 (1991). Chew has not demonstrated cause for

the default or actual prejudice as a result of the alleged violation of federal law. Id.

at 750. Nor has Chew shown that “failure to consider the claims would result in a

fundamental miscarriage of justice.” Id.

         Insofar as Chew claims that Woods violated his Sixth Amendment right to

conflict-free counsel by advising Rodney, Chew fails to state a viable Sixth


                                           2
Amendment claim. Mickens v. Taylor, 535 U.S. 162, 174 (2002). Woods did not

represent Chew at trial, and had not represented Chew for the six weeks before

trial. Therefore, Chew cannot possibly show that an “actual conflict of interest

adversely affected his lawyer’s performance.” Cuyler v. Sullivan, 446 U.S. 335,

349 (1980) (emphasis added).

      AFFIRMED




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