                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                         JAN 03 2017

                            FOR THE NINTH CIRCUIT                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS




JOSHUA DARNELL MASON,                            No. 14-35736

              Petitioner - Appellant,            D.C. No. 2:13-cv-01868-BJR

 v.
                                                 MEMORANDUM*
PATRICK GLEBE,

              Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Western District of Washington
             Barbara Jacobs Rothstein, Senior District Judge, Presiding

                        Argued and Submitted April 8, 2016
                               Seattle, Washington

Before: HAWKINS, RAWLINSON, and CALLAHAN, Circuit Judges.

      Petitioner-Appellant Joshua Mason (Mason) was convicted of two counts of

first-degree rape and one count of second-degree assault, with a deadly weapon,

and one count of witness tampering. He appeals the district court’s denial of his




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
habeas petition, arguing that he was deprived of his Sixth Amendment right to

counsel.

      As a preliminary matter, we conclude that Mason’s appeal was timely. The

record supports Mason’s contention that “for all practical purposes he was acting

pro se.” Vaughn v. Ricketts, 950 F.2d 1464, 1467 (9th Cit. 1991). Thus, he was

entitled to the benefit of the prison mailbox rule, and his notice of appeal was

timely because he delivered the notice of appeal “to prison authorities for mailing

to the court within the limitations period.” Hernandez v. Spearman, 764 F.3d

1071, 1074 (9th Cir. 2014) (citation omitted).

      Nonetheless, Mason failed to show that the “state decision resulted from an

unreasonable application of clearly established federal law.” Harrington v.

Richter, 562 U.S. 86, 100 (2011) (internal quotation marks omitted). Mason’s

assertion that he was deprived of his right to conflict-free counsel because a

relative paid his attorney and controlled the litigation is unavailing. There is no

clearly established Supreme Court authority holding that a third-party fee

arrangement results in a per se conflict of interest that “affected counsel’s

performance—as opposed to a mere theoretical division of loyalties. . . .” Mickens

v.Taylor, 535 U.S. 162, 171 (2002) (emphasis omitted).




                                     Page 2 of 3
      Mason also briefed the uncertified issue of whether the trial court violated

his right to be present at a critical stage of the proceedings, which we construe as a

motion to broaden the certificate of appealability. See Pham v. Terhune, 400 F.3d

740, 742 (9th Cir. 2005). We deny the motion because Mason has not “made a

substantial showing of the denial of a constitutional right.” Id. (citation and

internal quotation marks omitted).

      AFFIRMED.




                                     Page 3 of 3
