                                                                            FILED
                            NOT FOR PUBLICATION                              SEP 22 2011

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




                            FOR THE NINTH CIRCUIT



RICHARD BRIDGEWATER,                             No. 10-16649

              Petitioner - Appellant,            D.C. No. 2:02-cv-00971-LKK-
                                                 KJM
  v.

ERNIE ROE,                                       MEMORANDUM *

              Respondent - Appellee.



                  Appeal from the United States District Court
                      for the Eastern District of California
               Lawrence K. Karlton, Senior District Judge, Presiding

                            Submitted August 29, 2011 **
                              San Francisco, California

Before: BERZON and BYBEE, Circuit Judges, and GRAHAM, Senior District
Judge.***

       Petitioner Richard Bridgewater 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.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

       ***   The Honorable James L. Graham, Senior District Judge for the U.S.
District Court for Southern Ohio, Columbus, sitting by designation.
petition for a writ of habeas corpus. He presents two arguments: 1) his sentence

violates the Eighth Amendment’s prohibition against cruel and unusual punishment

because it is disproportionate to the sentence his co-defendant received, and 2) his

trial counsel’s previous work as a deputy district attorney and campaign for

District Attorney created a conflict of interest that precluded constitutionally

effective assistance of counsel.

      Bridgewater fails to cite any binding precedent supporting a proportionality

review analysis that compares a defendant’s sentence to that of his co-defendant.

The factors that are relevant to a proportionality review are: “(i) the gravity of the

offense and the harshness of the penalty; (ii) the sentences imposed on other

criminals in the same jurisdiction; and (iii) the sentences imposed for commission

of the same crime in other jurisdictions.” Solem v. Helm, 463 U.S. 277, 292

(1983). The Supreme Court has declined, even in capital cases, to add an

additional layer of review based on sentences received by co-defendants. Pulley v.

Harris, 465 U.S. 37, 42–44 (1984). Verdicts that are inconsistent between

defendants are not constitutionally impermissible, see United States v. Hughes

Aircraft Co., 20 F.3d 974, 977–78 (9th Cir. 1994), and if the punishments that

proceed from those verdicts are not grossly disproportionate to the crimes

committed, there is no violation of a petitioner’s Eighth Amendment rights.


                                           2
      Turning to Bridgewater’s Sixth Amendment claim, Bridgewater must show

that his “counsel’s representation fell below an objective standard of

reasonableness” when compared to prevailing professional norms. Strickland v.

Washington, 466 U.S. 668, 688 (1984). In the context of a claim of ineffective

counsel claim due to a conflict of interest, a petitioner must show both that an

actual conflict of interest existed and that his counsel’s performance was adversely

affected as a result of this conflict. Cuyler v. Sullivan, 446 U.S. 335, 348 (1980).

Bridgewater fails to do so. His claim is based solely on his counsel’s prior

relationship with the district attorney’s office. Even if he were to go so far as to

allege that his counsel had prosecuted him before in that position—which he does

not—that would not automatically produce an actual conflict of interest. See

Maiden v. Bunnell, 35 F.3d 477, 480–81 (9th Cir. 1994). The petitioner must show

that his counsel was “required to undermine, criticize, or attack his or her own

work product,” or that his loyalties were otherwise divided. Id. at 481 (citing

Mannhalt v. Reed, 847 F.2d 576, 580 (9th Cir. 1988)). Bridgewater has produced

no such evidence. He has also not “point[ed] to some aspect of [his counsel’s] trial

performance which was a likely adverse effect stemming from the alleged conflict

of interest.” Id. at 482. There is thus no reason to believe that his counsel was

ineffective.


                                           3
     Bridgewater is not entitled to relief on either his Eighth Amendment or Sixth

Amendment claim.

        AFFIRMED.




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