                                                                               FILED
                             NOT FOR PUBLICATION                                MAR 29 2013

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




                             FOR THE NINTH CIRCUIT



CHARLES JAMES KARNES,                              No. 12-35163

               Petitioner - Appellant,             D.C. No. 3:10-cv-00238-PK

  v.
                                                   MEMORANDUM *
JEFF PREMO,

               Respondent - Appellee.



                   Appeal from the United States District Court
                            for the District of Oregon
                 Malcolm F. Marsh, Senior District Judge, Presiding

                        Argued and Submitted March 7, 2013
                                 Portland, Oregon

Before: TASHIMA, CLIFTON, and BEA, Circuit Judges.

       Charles James Karnes appeals the district court’s denial of his petition for a

writ of habeas corpus under 28 U.S.C. § 2254. The district court rejected Karnes’s

claims for relief, but granted a certificate of appealability as to (1) whether Karnes

is entitled to habeas relief on his claim of ineffective assistance of trial counsel,



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
and (2) whether Karnes procedurally defaulted his claims that he was denied the

right to counsel of his choice and the due process right to be present at a status

conference where the trial court refused to delay his trial so that Karnes’s counsel

of choice could represent him. We have jurisdiction under 28 U.S.C. § 1291 and

§ 2253(a), and we affirm.

      1. Karnes’s ineffective assistance of counsel claim is governed by

Strickland v. Washington, 466 U.S. 668 (1984). Under the Antiterrorism and

Effective Death Penalty Act of 1996, we cannot grant habeas relief for claims

adjudicated on the merits in state court unless the last reasoned 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). The Oregon state

post-conviction relief court’s rejection of Karnes’s ineffective assistance of counsel

claim was not unreasonable because Karnes failed to show that he was prejudiced

by the alleged errors of his trial counsel. Even if his trial counsel had moved for a

continuance and requested that Karnes be present at the status conference, there is

not a reasonable probability that the trial court would have agreed to postpone the

trial. See Strickland, 466 U.S. at 694. The trial court understood that Karnes’s


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counsel of choice would represent him only if a continuance was granted, but the

trial court nonetheless refused to postpone the trial and further stated that he did

not think that hearing from Karnes would impact his decision.

      2. A writ of habeas corpus shall not be granted unless “the applicant has

exhausted the remedies available in the courts of the State.” 28 U.S.C.

§ 2254(b)(1)(A).

      Karnes did not raise his claim arising from the Sixth Amendment right to

counsel of choice to the Oregon Court of Appeals on direct appeal. A habeas

petitioner must fairly present his federal claims “in each appropriate state court” in

order to satisfy AEDPA’s exhaustion requirement, Baldwin v. Reese, 541 U.S. 27,

29 (2004), so this claim is procedurally defaulted.

      A habeas petitioner who has procedurally defaulted his claim may obtain

federal habeas review only if he demonstrates cause and prejudice for the default

or a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722,

750 (1991). Karnes has failed to do so, so his procedurally defaulted claim is

barred from federal review.

      Even if this claim of trial error were not procedurally defaulted, Karnes

would not be entitled to habeas relief. Karnes’s claim arising from the Sixth

Amendment right to counsel of one’s choice fails on the merits. The trial court’s


                                           3
refusal to postpone the trial was within the court’s “wide latitude” in balancing the

right to counsel of choice against the needs of fairness and scheduling. See United

States v. Gonzalez-Lopez, 548 U.S. 140, 152 (2006). It is undisputed that private

counsel Ahmed would not agree to represent Karnes unless a continuance of the

trial were granted, a continuance the trial court clearly stated it would not

countenance.

      As for his Fourteenth Amendment claim, even if the trial court violated

Karnes’s due process rights by failing to require his presence at the status

conference, Karnes cannot establish that he was prejudiced by his absence. See

Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).

      AFFIRMED.




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