                                                                              FILED
                           NOT FOR PUBLICATION                                FEB 29 2012

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


PATRICK BAYLIS,                                 No. 09-16715

             Petitioner - Appellant,            D.C. No. 3:07-cv-05791-CRB

       v.
                                                MEMORANDUM*
MATTHEW CATE,

             Respondent - Appellee.

                   Appeal from the United States District Court
                     for the Northern District of California
                   Charles R. Breyer, District Judge, Presiding

                          Submitted February 15, 2012**
                            San Francisco, California

Before: THOMAS, FISHER and IKUTA, Circuit Judges.

      Patrick Baylis appeals the district court’s denial of his 28 U.S.C. § 2254

habeas petition based on an alleged violation of his Sixth Amendment right to




        *
        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).
counsel of his choosing. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253,

and we affirm.

      1.      We assume without deciding that Baylis exhausted his claims and that

his arguments are not waived. See 28 U.S.C. § 2254(b)(2).

      2.      The state court’s decision to deny Baylis’ motion for substitution of

counsel was neither contrary to nor involved an unreasonable application of clearly

established federal law. See 28 U.S.C. § 2254(d)(1). Baylis’ chosen counsel had

previously represented Baylis’ brother and the state court could reasonably

determine that Baylis’ defense strategy was likely to be that the brother committed

the offenses for which Baylis was on trial. Under these circumstances, the state

courts reasonably applied Supreme Court precedent in denying Baylis’ request to

substitute counsel. See Wheat v. United States, 486 U.S. 153, 164 (1988) (the

presumption that a criminal defendant may have counsel of his choice “may be

overcome not only by a demonstration of actual conflict but by a showing of a

serious potential for conflict”). The state court’s finding of a conflict of interest

also was not an unreasonable determination of the facts. See 28 U.S.C. §

2254(d)(2).

      3.      The state court’s determination that the brother’s waiver “reflect[ed]

no awareness of the nature and seriousness of the conflict involved” and was


                                           2
therefore inadequate constituted a reasonable application of Supreme Court

precedent. See Wheat, 486 U.S. at 163 (holding that district courts “must be

allowed substantial latitude in refusing conflicts of interest not only in those rare

cases where an actual conflict may be demonstrated before trial, but in the more

common cases where a potential for conflict exists which may or may not burgeon

into an actual conflict as the trial progresses”).

      AFFIRMED.




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