                                                                           FILED
                           NOT FOR PUBLICATION                              OCT 22 2010

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




                            FOR THE NINTH CIRCUIT



JIMMY MAGEE,                                     No. 08-17337

              Petitioner - Appellant,            D.C. No. 1:06-cv-01304-AWI-
                                                 GSA
  v.

KATHY MENDOZA-POWERS,                            MEMORANDUM *

              Respondent - Appellee.



                  Appeal from the United States District Court
                      for the Eastern District of California
                 Anthony W. Ishii, Chief District Judge, Presiding

                      Argued and Submitted October 4, 2010
                            San Francisco, California

Before: HUG, RYMER and N.R. SMITH, Circuit Judges.

       Jimmy Magee appeals the district court’s denial of his habeas corpus petition

under 28 U.S.C. § 2254. We affirm.

                                          I




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The California Court of Appeal’s determination that Magee was not denied

his Sixth Amendment rights, because his trial counsel declined to impeach

prosecution witness Marlena Bruce, was neither contrary to, nor an unreasonable

application of, Supreme Court precedent. Magee failed to show prejudice by

demonstrating that, but for his counsel’s purportedly deficient performance, the

result of his criminal trial would have been different. See Strickland v.

Washington, 466 U.S. 668, 694 (1984).

      First, the evidence offered at trial was either independently sufficient to

convict or significantly corroborated Bruce’s testimony. Indeed, the evidence in

support of count one (arson of property) and count two (possession/manufacture of

flammable materials with intent to set a fire) was overwhelming. The prosecution

presented four witnesses (aside from Bruce) who testified that: (1) Magee visited

the victims’ residence earlier in the evening and caused a disturbance; (2) Magee

threatened the victims over the phone shortly before the arson; (3) Magee

purchased gasoline and King Cobra liquor from a store near the victims’ residence;

and (4) the incendiary device was made with a King Cobra bottle, filled with

gasoline, and ignited with a wick consisting of material that matched Magee’s

shirt, which was missing both sleeves. Magee himself admitted to arguing with the

victims on the phone and visiting their residence to demand that one of them


                                          2
“come out” and confront him. Even without Bruce’s testimony, the jury had more

than sufficient evidence to convict.

      Although Bruce’s testimony was more significant to count three (making

criminal threats), her testimony was corroborated by other witnesses’ and Magee’s

own testimony that (1) Magee was under the influence of alcohol and drugs that

evening; (2) Magee caused disturbances and made similar threats to the other

victims; (3) Magee was staying at Bruce’s house and used her telephone; and (4)

Bruce “put [Magee] out” after he smoked marijuana and asked to use her phone in

the middle of the night. In light of this evidence, it is doubtful that introduction of

an unrelated misdemeanor conviction would have diminished the jury’s confidence

in Bruce’s testimony that Magee threatened her.

                                           II

      Further, the state court’s determination that there was no conflict of interest

was not an objectively unreasonable application of Supreme Court precedent.

Magee failed to establish an actual conflict by showing (1) his “counsel actively

represented conflicting interests,” and (2) the “conflict of interest adversely

affected his lawyer’s performance.” Cuyler v. Sullivan, 446 U.S. 335, 350 (1980).

      First, Magee’s attorney was not actively representing conflicting interests

because (1) he never represented Bruce personally, (2) he did not have access to


                                           3
Bruce’s confidential information, (3) his office no longer had an active file on

Bruce, (4) the attorney who represented Bruce no longer worked for the public

defender’s office, and (5) Bruce had completed her probation before Magee’s trial.

Moreover, any purported successive conflict of interest problem did not conflict

with Supreme Court precedent. See 28 U.S.C. § 2254(d)(1); Wright v. Van Patten,

552 U.S. 120, 126 (2008) (when Supreme Court “cases give no clear answer to the

question presented, . . . it cannot be said that the state court unreasonably applied

clearly established Federal law” (internal quotation marks and citations omitted)).

Lastly, it was not objectively unreasonable for the state appellate court to conclude

that counsel’s view on the admissibility of the misdemeanor conviction was a

misunderstanding of the law rather than the result of lingering solicitude to Bruce.

      AFFIRMED.




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