                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

JOSE ENRIQUE ALBERNI,                      
              Petitioner-Appellant,              No. 05-15570
                v.
                                                  D.C. No.
                                               CV-01-00725-DWH
E.K. MCDANIEL; FRANKIE SUE DEL
PAPA; STATE OF NEVADA,                             OPINION
           Respondents-Appellees.
                                           
         Appeal from the United States District Court
                  for the District of Nevada
        David Warner Hagen, District Judge, Presiding

                   Argued and Submitted
        February 16, 2006—San Francisco, California

                       Filed August 9, 2006

   Before: Arthur L. Alarcón and M. Margaret McKeown,
          Circuit Judges, and H. Russel Holland,*
                   Senior District Judge.

                Opinion by Judge Alarcón;
Partial Concurrence and Partial Dissent by Judge McKeown




   *The Honorable H. Russel Holland, Senior United States District Judge
for the District of Alaska, sitting by designation.

                                 9167
9170               ALBERNI v. MCDANIEL


                       COUNSEL

Paul G. Turner, Assistant Federal Public Defender, Las
Vegas, Nevada, for the petitioner-appellant.

John M. Warwick, Office of Attorney General, Criminal Jus-
tice Division, Carson City, Nevada, for the respondents-
appellees.
                     ALBERNI v. MCDANIEL                   9171
                          OPINION

ALARCÓN, Circuit Judge:

   Petitioner José Enrique Alberni appeals from the order
denying his petition for a writ of habeas corpus filed pursuant
to 28 U.S.C. § 2254. Mr. Alberni was convicted of Second
Degree Murder With Use of a Deadly Weapon in Nevada
state court. He argues that his Fourteenth Amendment due
process rights were violated by the introduction of character
evidence at his trial and that his Sixth Amendment right to
conflict-free counsel was violated by his trial counsel’s cross-
examination of a prosecution witness who had been his attor-
ney’s client. The Nevada Supreme Court’s conclusion that
Mr. Alberni’s right to due process was not violated was not
contrary to and did not involve an unreasonable application of
federal law. We vacate and remand for an evidentiary hearing
to determine whether Mr. Alberni’s right to conflict-free
counsel was violated.

                               I

   We first consider whether Mr. Alberni’s due process rights
were violated by the introduction of propensity evidence at
his trial.

                               A

   On Christmas Day, 1994, Mr. Alberni shot and killed his
friend Dennis McElroy. At trial, Mr. Alberni claimed that the
shooting was accidental. The jury was persuaded that it was
deliberate and convicted Mr. Alberni of second degree mur-
der.

  During the trial, the prosecutor introduced evidence of Mr.
Alberni’s past violent actions and explosive temper and relied
heavily on that evidence in his closing argument. In his direct
appeal to the Nevada Supreme Court, Mr. Alberni argued that
9172                 ALBERNI v. MCDANIEL
the admission of the propensity evidence and the prosecutor’s
argument violated his right to due process. The Nevada
Supreme Court concluded, without an explanation of its ratio-
nale, that no constitutional error had occurred. The Nevada
Supreme Court determined that a photograph of Mr. Alberni
with a gun was relevant to show Mr. Alberni’s familiarity
with guns, in order to rebut his claim that the shooting was
accidental. As to the other evidence of bad acts, it held that
the admission of such evidence was harmless in “light of the
overwhelming evidence of Alberni’s guilt.” The Nevada
Supreme Court also concluded, without analysis, that the
prosecutor did not engage in misconduct in alluding to the
prior acts evidence in his argument to the jury.

                               B

  Mr. Alberni argues that the introduction of the propensity
evidence, and the prosecutor’s comments on that evidence,
violated his due process rights under the Fourteenth Amend-
ment. A district court’s decision to grant or deny a petition for
habeas corpus is reviewed de novo. Daniels v. Woodford, 428
F.3d 1181, 1196 (9th Cir. 2005).

   Under the Anti-terrorism and Effective Death Penalty Act
(“AEDPA”), a state prisoner is entitled to relief under § 2254
regarding a claim adjudicated on the merits in state court if
the decision of the state’s highest court either is contrary to
or involves an unreasonable application of clearly established
federal law, as determined by the Supreme Court of the
United States. Williams v. Taylor, 529 U.S. 362, 402-04
(2000). “A decision is ‘contrary to’ federal law when a state
court applies a rule of law different from that set forth” in
Supreme Court holdings or when it makes a contrary determi-
nation based on “ ‘materially indistinguishable facts.’ ” Earp
v. Ornoski, 431 F.3d 1158, 1182 (9th Cir. 2005) (quoting Wil-
liams, 529 U.S. at 405-06). An “unreasonable application”
occurs when the state court applies Supreme Court holdings
to the facts of the petitioner’s case in a manner that is “objec-
                      ALBERNI v. MCDANIEL                    9173
tively unreasonable.” Id. (quoting Williams, 529 U.S. at 409).
“Clearly established federal law ‘as determined by the
Supreme Court, refers to the holdings, as opposed to the dicta
of [the Supreme Court’s] decisions as of the time of the rele-
vant state-court decision.’ ” Id. (quoting Lambert v. Blodgett,
393 F.3d 943, 974 (9th Cir. 2004) (internal citation omitted).

   [1] In Garceau v. Woodford, 275 F.3d 769 (9th Cir. 2001),
rev’d on other grounds, 538 U.S. 202 (2003), we acknowl-
edged that the “Supreme Court has never expressly held that
it violates due process to admit other crimes evidence for the
purpose of showing conduct in conformity therewith.” Id. at
774. In fact, the Supreme Court reserved determination of this
question in Estelle v. MacGuire, 502 U.S. 62 (1991). In
Estelle, the defendant was accused of killing his infant daugh-
ter. Id. at 64. The prosecution introduced evidence that on
prior occasions, the child suffered non-accidental injuries. Id.
at 66. The evidence was intended to establish that the child
suffered from “battered child syndrome” and that her ulti-
mately fatal injuries were not accidental. Id. at 68. After the
defendant was convicted and his appeals to the state court
were denied, he sought habeas corpus relief. Id. at 66. He
argued that the admission of the evidence of prior injuries vio-
lated the right to due process. Id. at 66-67. The Supreme
Court held that the admission of the evidence did not rise to
the level of a due process violation because “the prior injury
evidence was relevant to an issue in the case.” Id. at 70. The
Court stated that “we need not explore further the apparent
assumption of the Court of Appeals that it is a violation of the
due process guaranteed by the Fourteenth Amendment for
evidence that is not relevant to be received in a criminal trial.”
Id. Furthermore, the Court held there was no reasonable like-
lihood that the jury considered the evidence of prior injuries
as propensity evidence. Id. at 74-75. It concluded: “[b]ecause
we need not reach the issue, we express no opinion on
whether a state law would violate the Due Process Clause if
it permitted the use of ‘prior crimes’ evidence to show pro-
pensity to commit a charged crime.” Id. at 75 n.5.
9174                  ALBERNI v. MCDANIEL
   Lacking any Supreme Court authority directly on point, Mr.
Alberni relies exclusively on cases we decided prior to the
enactment of AEDPA to support his contention that the pro-
pensity evidence offered in his case violated due process. See,
e.g., Garceau, 275 F.3d at 775; Walters v. Maas, 45 F.3d
1355, 1357 (9th Cir. 1995); McKinney v. Rees, 993 F.2d 1378,
1384 (9th Cir. 1993); Jammal v. Van de Kamp, 926 F.2d 918,
920 (9th Cir. 1991); McGuire v. Estelle, 902 F.2d 749 (9th
Cir. 1990), rev’d 502 U.S. 62 (1991). However, when the
Supreme Court has expressly reserved consideration of an
issue, as it has here, the petitioner cannot rely on circuit
authority to demonstrate that the right he or she seeks to vin-
dicate is clearly established. See Earp, 431 F.3d at 1184-85.
Circuit “precedent derived from an extension of a Supreme
Court decision is not ‘clearly established federal law as deter-
mined by the Supreme Court.’ ” Id. at 1182 (quoting Duhaime
v. Ducharme, 200 F.3d 597, 602-03 (9th Cir. 2000)). “Circuit
precedent is relevant only to the extent it clarifies what consti-
tutes clearly established law.” Id. “[P]ost-AEDPA[,] only
Supreme Court holdings are binding on state courts.” Earp,
431 F.3d at 1184 n.23.

   Mr. Alberni argues that even though the Supreme Court has
never explicitly held that the introduction of propensity evi-
dence may violate due process, we may apply the “general
governing principles to the case at hand.” Robinson v. Igna-
cio, 360 F.3d 1044, 1056-57 (9th Cir. 2004). The Supreme
Court has established a general principle that evidence that “is
so extremely unfair that its admission violates fundamental
conceptions of justice” may violate due process. Dowling v.
United States, 493 U.S. 342, 352 (1989). Mr. Alberni argues
that we can look to our own precedent to the extent it clarifies
this general principle. See Robinson, 360 F.3d at 1057.

   In Robinson, the trial court granted the defendant’s request
to represent himself at trial after extensive canvassing on the
issue. 360 F.3d at 1048. After he was convicted, he sought to
have counsel appointed for his sentencing hearing. Id. The
                     ALBERNI v. MCDANIEL                   9175
trial court denied his request, concluding that “[b]ased on the
extensive canvass of the Court and contrary to my suggestions
to [the defendant], he elected to represent himself in this pro-
ceeding.” Id. The defendant argued in federal habeas corpus
proceedings that this denial of counsel violated the Sixth
Amendment. Id. at 1051. We concluded that “[a]lthough the
Supreme Court has never explicitly addressed a criminal
defendant’s ability to re-assert his right to counsel for sen-
tencing after a previous waiver of that right during trial, its
silence on this particular issue need not prevent us from iden-
tifying and applying the general governing principles at
hand.” Id. at 1056-57; see also Williams, 529 U.S. at 407
(“[A] state-court decision also involves an unreasonable
application of this Court’s precedent if the state court either
unreasonably extends a legal principle from our precedent to
a new context where it should not apply or unreasonably
refuses to extend that principle to a new context where it
should apply.”). We stated in Robinson that the “Supreme
Court’s Sixth Amendment jurisprudence has long recognized
that a criminal defendant’s right to counsel is a fundamental
component of our justice system.” Id. at 1056. Furthermore,
we noted, “whenever a defendant is denied counsel during
sentencing, the Supreme Court has uniformly found constitu-
tional error without any showing of prejudice.” Id. (citing
United States v. Cronic, 466 U.S. 648, 659 (1984); Chapman
v. California, 386 U.S. 18, 23 & n.8 (1967)). After looking at
the general principles articulated by the Supreme Court, we
concluded: “[W]hen faced with a novel situation we may turn
to our own precedent, as well as the decisions of other federal
courts, in order to determine whether the state decision vio-
lates the general principles enunciated by the Supreme Court
and is thus contrary to clearly established federal law.” Id. at
1057.

   We are mindful that every circuit, in cases decided prior to
the enactment of AEDPA, has acknowledged, at least implic-
itly, that the improper introduction of evidence may violate
due process if it renders a trial fundamentally unfair. See Jer-
9176                  ALBERNI v. MCDANIEL
vis v. Hall, 622 F.2d 19, 22 (1st Cir. 1980) (“[S]o long as a
legitimate state purpose was served by the admission of prior-
crime evidence, its admission was not subject to constitutional
attack”); Collins v. Scully, 755 F.2d 16, 18 (2d Cir. 1985) (“In
order to prevail on a claim that an evidentiary error deprived
the defendant of due process under the Fourteenth Amend-
ment he must show that the error was so pervasive as to have
denied him a fundamentally fair trial.”) (citing United States
v. Agurs, 427 U.S. 97, 108 (1976)); United States v. Banmil-
ler, 310 F.2d 720, 725 (3d Cir. 1962) (concluding that defen-
dant’s trial was rendered fundamentally unfair by introduction
of prior record), abrogated by Spencer v. Texas, 385 U.S. 554
(1967); Stockton v. Virginia, 852 F.2d 740, 748 (4th Cir.
1988) (“[T]he admissibility of evidence is generally a matter
of state law which does not properly concern a federal habeas
court unless it impugns the fundamental fairness of the trial”);
Lucas v. Johnson, 132 F.3d 1069, 1079 (5th Cir. 1998)
(“Habeas relief is warranted [for erroneous admission of evi-
dence] when the erroneous admission played a crucial, critical
and highly significant role in the trial”) (internal citations and
alterations omitted); Burton v. Renico, 391 F.3d 764, 774 (6th
Cir. 2004) (“For the admission of evidence to violate constitu-
tional due process, it must be shown that admitting the evi-
dence violates fundamental fairness . . .”) (internal quotations
omitted); Pierson v. O’Leary, 959 F.2d 1385 (7th Cir. 1992)
(stating that the improper admission of evidence renders a
trial fundamentally unfair if its prejudicial effect outweighs its
probative value “such that its admission likely changed the
outcome of the trial”), abrogated on other grounds, Cabrera
v. Hinsley, 324 F.3d 527 (7th Cir. 2003); Hobbs v. Lockhart,
791 F.2d 125, 127 (8th Cir. 1986) (stating that questions
regarding the admissibility of evidence are reviewable in a
habeas corpus proceeding if “the asserted error . . . was so
prejudicial as to deny due process”); McKinney, 993 F.2d at
1380 (concluding that use of character evidence to show pro-
pensity may violate due process); Duvall v. Reynolds, 139
F.3d 768, 787 (10th Cir. 1998) (stating that the erroneous
admission of evidence that renders a trial fundamentally
                         ALBERNI v. MCDANIEL                           9177
unfair violates due process); Dobbs v. Kemp, 790 F.2d 1499,
1503 (11th Cir. 1986) (stating that evidentiary errors are
grounds for granting a writ of habeas corpus when the trial is
rendered fundamentally unfair). Given the unanimity of the
Courts of Appeals regarding the question whether the intro-
duction of propensity evidence could ever violate due process,
and the corresponding unlikelihood the Supreme Court will
ever resolve the question it reserved in Estelle,1 Mr. Alberni’s
argument that this Court should apply general principles of
due process articulated by the Supreme Court is somewhat
attractive. The Supreme Court has articulated the general
principle that a denial of due process is demonstrated if “the
action complained of . . . violates those ‘fundamental concep-
tions of justice which lie at the base of our civil and political
institutions.’ ” United States v. Lovasco, 431 U.S. 783, 790
(1977) (quoting Mooney v. Holohan, 294 U.S. 103, 112
(1935)). In applying this general principle, both our prece-
dents and the precedents of our sister circuits have concluded
that it could apply to the introduction of propensity evidence.
Had the Nevada Supreme Court concluded that the introduc-
tion of propensity evidence could never violate due process,
this holding would have been out of step with each Circuit’s
application of Supreme Court precedent.
   1
     The Supreme Court has denied certiorari at least four times on the issue
presented in this case and reserved in Estelle. See, e.g., Hawkins v. Cali-
fornia, 537 U.S. 1189 (2003) (petition for writ of certiorari to the Califor-
nia Court of Appeal, 98 Cal. App. 4th 1428 (2003), in which petitioner
argued that evidence of prior misconduct violated due process, 2002 WL
32133733); duPont v. Pennsylvania, 530 U.S. 1231 (2000) (petition for
writ of certiorari to the Superior Court of Pennsylvania, 730 A.2d 970
(1999), in which petitioner argued that the use of propensity evidence
when defendant asserted insanity defense violated due process, 2000 WL
34014059); Olivarez v. McKinney, 510 U.S. 1020 (1993) (petition for writ
of certiorari to the Ninth Circuit Court of Appeals, 993 F.2d 1378 (9th Cir.
1993), in which the question was whether the introduction of propensity
evidence in a closely balanced case constituted a per se due process viola-
tion, 1993 WL 13076599); Jacobsen v. Illinois, 509 U.S. 923 (1993) (peti-
tion for writ of certiorari to the Appellate Court of Illinois, in which
petitioner argued that Supreme Court should address the question it left
open in Estelle, 1993 WL 13076858).
9178                     ALBERNI v. MCDANIEL
   [2] Nevertheless, this case is distinguishable from Robin-
son. In this case, the Supreme Court expressly reserved con-
sideration of the issue at hand in Estelle. In Robinson, the
Supreme Court had not made such a reservation. See Robin-
son, 360 F.3d at 1056-57, 1056 n.6. The circumstances of this
case are more like those present in Earp, in which we
declined to declare a constitutional principle clearly estab-
lished after the Supreme Court had expressly concluded the
issue was an “open question.” Earp, 431 F.3d at 1185. We
held in Earp that “the advent of AEDPA forecloses the option
of reversing a state court determination because it conflicts
with circuit law.” Id. We cannot conclude that the Nevada
Supreme Court acted in an objectively unreasonable manner
in concluding that the propensity evidence introduced against
Mr. Alberni did not violate due process, given that Estelle
expressly left this issue an “open question.”

   [3] The right Mr. Alberni asserts has not been clearly estab-
lished by the Supreme Court, as required by AEDPA. The dis-
trict court did not err in denying Mr. Alberni’s petition on due
process grounds.2

                                    II

   Next we consider whether Mr. Alberni’s right to conflict-
free counsel was violated.

                                    A

  Sean Flamm was a former client of James Buchanan, Mr.
Alberni’s trial counsel. Mr. Buchanan objected to cross-
examining a former client.
  2
   Mr. Alberni also claims his due process rights were violated on the the-
ory that the prosecution engaged in misconduct by commenting on the
propensity evidence. The prosecutor’s comments on the evidence did not
violate clearly established Supreme Court precedent.
                     ALBERNI v. MCDANIEL                    9179
  Mr. Flamm’s name first came up during the State’s cross-
examination of Mr. Alberni. The State asked:

    Q   Do you know a person by the name of Sean
        Flamm?

    A   Yes, sir.

    Q   Were you ever involved in an accident with Mr.
        Flamm?

    A   Yes, sir. As a matter of fact, they came to shoot
        me and Dennis McElroy saved my life that day.

    Q   Did you ever strike Mr. Flamm?

    A   Yes, sir, I did.

    Q   What did you strike him with?

    A   My hand.

    Q   There wasn’t a gun involved in that incident?

    A   They had it and we took it from him. Dennis
        took it from him when the dude cocked it to
        shoot me. Dennis rushed him, took the gun, and
        took it.

    Q   Was that an incident over money?

    A   No.

    Q   Are you sure?

    A   Yes, sir.

  On redirect, Mr. Alberni testified in detail concerning the
events that led up to the altercation with Mr. Flamm. He testi-
9180                 ALBERNI v. MCDANIEL
fied that one evening, while he was staying in a hotel room,
he gave Mr. Flamm a quarter ounce of drugs and a knife. Mr.
Flamm left the hotel room and was subsequently searched by
police. The police found the drugs. Mr. Alberni testified that
Mr. Flamm told the police he had gotten the drugs from Mr.
Alberni. Mr. Flamm returned to the hotel room a short time
later, insisted that he be let in, and asked for money for gas.
Mr. Alberni’s girlfriend gave him a few dollars.

   Immediately after Mr. Flamm left, the police arrived at Mr.
Alberni’s door. Mr. Alberni consented for the police to search
the hotel room, and the police found drugs. Mr. Alberni was
arrested. He testified that the police told him that Mr. Flamm
had turned him in. Mr. Alberni agreed to assist the police with
a controlled buy. He testified that he did not actually help the
police as he promised.

  Mr. Alberni began to tell his and Mr. Flamm’s mutual
acquaintances that Mr. Flamm was a “rat” and that Mr.
Flamm had “snitched” on him. Mr. Flamm, hearing that Mr.
Alberni was making these statements, threatened to fight with
Mr. Alberni. Mr. Alberni responded, “Bring it on.” Eventually
Mr. Flamm and Mr. Alberni spoke on the phone and
exchanged hostile words. Mr. Alberni testified:

    “He was telling me, “You piece of shit, you know,
    fuck you. What are you saying I’m a rat. You got
    some paperwork on me?” That’s street talk, you got
    something to prove, something on paper. I don’t
    have any paperwork. I’m not going to the cops. You
    ratted on somebody. That’s why you are violent. He
    got a parole violator. He got out through some law-
    yer and I don’t know, one thing led to another.

   With goading from Mr. Alberni, Mr. Flamm came to the
apartment where Mr. Alberni was staying. Mr. Flamm was
accompanied by David Lum. Mr. Lum had a gun. According
to Mr. Alberni, Mr. Flamm rushed through the door when Mr.
                     ALBERNI v. MCDANIEL                     9181
McElroy opened it. Mr. Flamm made threatening gestures and
remarks. Mr. Alberni hit Mr. Flamm. Mr. McElroy grabbed
the gun from Mr. Lum. Mr. McElroy hit and kicked Mr. Lum.
Mr. Alberni hit him as well. Mr. Alberni testified that Mr.
McElroy saved his life.

  On recross examination by the prosecutor, the following
exchange occurred:

    Q   Dennis isn’t here to backup your story, is he?

    A   No, he ain’t.

    Q   What happened to Dennis?

    A   He’s dead.

    Q   Who shot him?

    A   Accidentally, me.

    Q   Who shot him?

    A   Me.

  After the defense rested, the State called Mr. Flamm as a
rebuttal witness. Mr. Flamm testified that he went to see Mr.
Alberni because he owed Mr. Alberni approximately $300.
Mr. Flamm had owed Mr. Alberni the money for some time
and was not able to pay. He did not remember if anyone
besides Mr. Alberni was at the apartment. Mr. Flamm
explained:

    I walked in [the apartment] to confront him because
    he was telling some girl that he wanted to talk to me.
    I went up there to go talk to him and to see what was
    going on. He was turned around and when I went to
    go approach him, he turned around with the butt of
9182                ALBERNI v. MCDANIEL
    his gun and hit me right upside my eye right here. At
    that time I fell down and I don’t remember what hap-
    pened then.

Mr. Flamm denied making any offensive gestures to Mr.
Alberni. He denied that Mr. Alberni had ever threatened him
in connection with the debt.

   Mr. Buchanan had previously represented Mr. Flamm on
drug charges for which Mr. Flamm pled guilty and was placed
on probation. He represented Mr. Flamm a second time in
connection with his arrest at the motel after Mr. Alberni gave
him drugs—the arrest about which Mr. Alberni testified. As
a result of the arrest at the motel, Mr. Flamm’s probation was
modified to include boot camp. When Mr. Flamm failed to
complete boot camp, his deferred sentence of imprisonment
was imposed. By the time Mr. Flamm testified, he was on
parole.

  Mr. Buchanan refused to cross-examine Mr. Flamm, stat-
ing, “I won’t ask him any questions. No questions.” He
explained: “I just don’t wish to cross examine one of my cli-
ents. I will ask no questions.”

   The trial court began to question Mr. Flamm about Mr.
Buchanan’s representation of him. The court established that
although Mr. Buchanan’s representation of Mr. Flamm was
not connected with the shooting of Mr. McElroy, it was con-
nected with the altercation between Mr. Flamm and Mr.
Alberni. The court did not ask Mr. Flamm for details regard-
ing how the two matters were related.

   The trial court then sought a waiver of the conflict from
Mr. Flamm, but not Mr. Alberni. The court asked Mr. Flamm:
“So you waive any conflict of interest that you might have by
virtue of him representing both Mr. Alberni on this case and
yourself in the matter for which you stand on probation?” To
this Mr. Flamm responded: “None.”
                     ALBERNI v. MCDANIEL                   9183
   Although the court insisted that Mr. Flamm had “waived
his right to have [Mr. Buchanan] maintain his confidence,”
the court never explicitly asked Mr. Flamm for a waiver of
attorney-client confidentiality or explained to him the nature
of the right he was supposedly waiving. Instead, the court
asked him: “Do you have any objection to Mr. Buchanan
cross examining you about this incident at this point?” and
“you don’t care whether [defense counsel] asks the question;
is that correct?” After Mr. Buchanan insisted that a conflict of
interest had arisen because Mr. Alberni had referred to Mr.
Buchanan in his testimony when he spoke of a lawyer getting
Mr. Flamm out of jail, the court stated, “He holds the privi-
lege. He waives it; is that correct?” To which Mr. Flamm vol-
unteered, “Whatever. Whatever needs to be asked. I mean let
it be asked.”

   Mr. Buchanan protested: “I don’t know whether a client
can waive an ethical breach of a confidential relationship.”
The trial court responded that there was “no ethics involved
once he waived the conflict and his right to have you retain
his confidence.” The court stated, “as a matter of law, in my
opinion, and I hereby absolve you of any possible conflict of
interest and the issue that is before the Court, the Court, as a
matter of law, rules that you have no ethical issue with cross
examining the witness because he has waived his right to have
you maintain his confidence.” Mr. Buchanan responded, “All
right. I’ll accept that.”

   Mr. Buchanan proceeded to cross-examine Mr. Flamm. He
did not impeach Mr. Flamm with his prior felony conviction.
He did not impeach Mr. Flamm based on the fact that he vio-
lated his probation when he accepted drugs from Mr. Alberni.
He did not impeach Mr. Flamm with the inconsistencies in his
testimony. He did not impeach Mr. Flamm by pointing out the
inconsistencies between his and Mr. Alberni’s testimony.
Although he did ask him whether he had heard Mr. Alberni
had called him a rat, he did not press Mr. Flamm on whether
he was angered by that. He did not question Mr. Flamm
9184                 ALBERNI v. MCDANIEL
regarding who started the altercation. He did not press Mr.
Flamm when he contended he did not remember Mr. McElroy
being present. He did not ask Mr. Flamm about Mr. Alberni’s
claim that he hit him with his hand, not with a gun. Regarding
Mr. Flamm’s claim that he went to see Mr. Alberni because
he owed him money, the following exchange occurred:

    Q    You went there with the express intent of con-
         fronting Mr. Alberni in regard to things he was
         saying about you?

    A    No, because I owed him money.

    Q    Okay. Well—

    A    We went there to talk about money.

    Q    Well, if you owe somebody money, you don’t
         go look somebody up, do you?

    A    When it comes to him, yeah.

    Mr. Buchanan:     Nothing further.

The cross-examination took up only three pages of transcript.

   Mr. Alberni contended on direct appeal in state court that
the cross-examination violated his Sixth Amendment right to
conflict-free counsel. The Nevada Supreme Court concluded
that no conflict existed, and to the extent one did exist, the
trial court’s questioning alleviated it. The district court con-
cluded in the § 2254 proceedings that “the jury had already
been informed that Flamm had been involved in selling drugs
with Alberni; thus, the defense stood to gain little by asking
Flamm about his felony drug conviction.” Accordingly, the
district court held that Mr. Buchanan’s performance was not
adversely affected by the conflict.
                      ALBERNI v. MCDANIEL                     9185
                                B

   [4] “The Sixth Amendment right to counsel includes a cor-
relative right to representation free from conflicts of interest.”
Lewis v. Mayle, 391 F.3d 989, 995 (9th Cir. 2004). To estab-
lish a violation of the right to conflict-free counsel, the peti-
tioner must show either that (1) in spite of an objection, the
trial court failed to allow him the “opportunity to show that
potential conflicts impermissibly imperil his right to a fair
trial;” or (2) that an actual conflict of interest existed. Cuyler
v. Sullivan, 446 U.S. 335, 348 (1980).

   [5] In several cases in which the Supreme Court has
defined the right to conflict-free counsel, the defense attorney
actively and concurrently represented conflicting interests.
Mickens v. Taylor, 535 U.S. 162, 166-167 (2002) (discussing
earlier authority); see also Holloway v. Arkansas, 435 U.S.
475 (1978) (attorney representing co-defendants); Cuyler, 446
U.S. at 337-38 (same). In those cases, the Court created, in
effect, a distinction between an actual conflict of interest, and
a mere hypothetical one. It pointed out that dual representa-
tion by an attorney does not per se create a conflict of interest.
Indeed, in many situations, dual representation may work in
the defendant’s favor. Holloway, 435 U.S. at 482; Cuyler, 446
U.S. at 348. Nevertheless, the Court concluded that “joint rep-
resentation of conflicting interests is suspect” because of the
effect it may have on counsel’s performance. Holloway, 435
U.S. at 489-490. Accordingly, the Sixth Amendment does not
protect against a “mere theoretical division of loyalties.”
Mickens, 535 U.S. at 171. Rather, it protects against conflicts
of interest that adversely affect counsel’s performance. Id. at
172 n.5. Indeed, in Mickens, the Court held that “actual con-
flict” is defined by the effect a potential conflict had on coun-
sel’s performance. In Mickens, the Court explained, “[A]n
actual conflict of interest [means] precisely a conflict that
affected counsel’s performance—as opposed to a mere theo-
retical division of loyalties.” Id. at 171; see also id. at 172 n.5
9186                  ALBERNI v. MCDANIEL
(“[W]e have used ‘conflict of interest’ to mean a division of
loyalties that affected counsel’s performance.”).

   [6] When counsel objects to potentially conflicted represen-
tation, the trial court has an opportunity to eliminate the possi-
bility of an impact on counsel’s performance through seeking
a waiver from the defendant, appointing separate counsel, or
taking adequate “steps to ascertain whether the risk [is] too
remote to warrant separate counsel.” Holloway, 435 U.S. at
484; Mickens, 535 U.S. at 173. If the trial court fails to make
such an inquiry into the potential conflict, reversal is auto-
matic. Holloway, 435 U.S. at 488. The Court has reasoned
that in such a case, prejudice should be presumed. It has
stated:

       [T]his Court has concluded that the assistance of
    counsel is among those ‘constitutional rights so basic
    to a fair trial that their infraction can never be treated
    as harmless error.’ Accordingly, when a defendant is
    deprived of the presence and assistance of his attor-
    ney, either throughout the prosecution or during a
    critical stage in, at least, the prosecution of a capital
    offense, reversal is automatic.

       That an attorney representing multiple defendants
    with conflicting interests is physically present at pre-
    trial proceedings, during trial, and at sentencing does
    not warrant departure from this general rule. Joint
    representation of conflicting interests is suspect
    because of what it tends to prevent the attorney from
    doing.

Id. at 489-90 (internal citations omitted).

  The State argues that the trial court’s questioning of Mr.
Flamm eliminated the potential for conflict because Mr.
Flamm waived his attorney-client privilege. The State’s argu-
ment supposes that after a hypothetical division of loyalties is
                     ALBERNI v. MCDANIEL                   9187
eliminated, no actual conflict of interest will arise. There is
some support for this proposition. In United States v. Partin,
601 F.2d 1000 (9th Cir. 1979), we held that no conflict arose
when the witness waived his attorney-client privilege. In that
case, counsel objected to cross-examining his client because
of the attorney-client privilege. This Court stated, “Once [the
witness] waived his attorney-client privilege the conflict
which concerned [counsel] was eliminated. The privilege was
not [counsel’s] but [the witness’s].” Id. at 1009; see also
United States v. Jeffers, 520 F.2d 1256, 1265 (7th Cir. 1975)
(concluding that a waiver of attorney-client privilege may
have alleviated counsel’s concern that he possessed confiden-
tial information concerning a witness).

   [7] However, this authority does not guide our inquiry
under these circumstances. Rather, we are bound to consider
Supreme Court precedent, which holds that an actual conflict
is defined by its effect on counsel, not by whether there is a
“mere theoretical division of loyalties.” Mickens, 535 U.S. at
171, 172 n.5. A court is not required to inquire “into actual
conflict as something separate and apart from adverse affect.”
Id. at 172 n.5. Here, the trial court’s questioning of Mr.
Flamm, may have, from a hypothetical perspective, elimi-
nated Mr. Buchanan’s conflict. It did not necessarily eliminate
the impact the conflict had on Mr. Buchanan’s performance.
In Holloway, the Court concluded that a trial court’s question-
ing could eliminate a conflict. However, the conflict could be
eliminated because the questioning would result in the
appointment of new counsel or the conclusion that “the risk
[of conflict] was too remote to warrant separate counsel.”
Holloway, 435 U.S. at 484. The Court did not assume that
once counsel claimed his performance would be adversely
affected, the trial court could somehow erase the attorney’s
concerns through seeking waivers of the attorney’s ethical
duties. The trial court in this case did not expressly find that
the risk was remote that Mr. Buchanan’s performance would
be affected. It hardly inquired into the nature of Mr. Buchan-
an’s concerns. In the questions posed to Mr. Flamm, the trial
9188                 ALBERNI v. MCDANIEL
court focused on whether the witness was willing to waive the
impact of the conflict of interest. It did not question Mr.
Alberni about the alleged conflict and its possible adverse
impact on Mr. Buchanan’s defending Mr. Alberni.

   [8] In Partin, after concluding that the waiver of attorney-
client privilege had eliminated the potential for an adverse
effect on counsel’s performance, the court went on to consider
whether counsel’s performance was in fact adversely affected.
Partin, 601 F.2d at 1009. The implication is that the trial
court’s theoretical elimination of the conflict would not be
sufficient in the face of an actual adverse impact on the defen-
dant. In this case, even if the waiver the trial court sought of
Mr. Flamm’s attorney-client privilege was valid, if Mr.
Buchanan’s performance was adversely affected, a conflict
existed. The Nevada Supreme Court’s conclusion that “any
potential conflict of interest was sufficiently mitigated by
questions the district court posed to the witness” is therefore
contrary to clearly established federal law.

   We are nevertheless unconvinced by Mr. Alberni’s argu-
ment that because he objected to the cross-examination of Mr.
Flamm and the trial court’s inquiry was insufficient, no fur-
ther showing of an actual conflict is needed. In Holloway, it
was unnecessary for the defendant to demonstrate an actual
conflict because the attorney repeatedly contended on that
record that his representation was adversely affected. Hol-
loway, 435 U.S. at 484. The Court deferred to the attorney’s
judgment about his own representation. Id. at 485. In this
case, Mr. Buchanan stated that he would “accept” the trial
court’s “absolution” from his asserted conflict of interest.
Beyond that, there is no record to demonstrate that Mr.
Buchanan continued to consider himself constrained.

   It is therefore necessary for Mr. Alberni to demonstrate that
an actual conflict of interest existed. That is, he must show
that Mr. Buchanan’s performance was adversely affected. It
is not clear from its opinion that the Nevada Supreme Court
                     ALBERNI v. MCDANIEL                   9189
based its holding that there was no actual conflict of interest
solely on the fact that Mr. Buchanan no longer represented
Mr. Flamm, and therefore was not “actively representing con-
flicting interests.” See, e.g., Bragg v. Galaza, 242 F.3d 1082,
1087 (9th Cir.), amended by 253 F.3d 1150 (9th Cir. 2001)
(concluding that to show an actual conflict a petitioner must
show that counsel actively represented conflicting interests).
Such a holding would be unreasonable in light of clearly
established federal law. It is clearly established by Supreme
Court precedent that “successive representation” may pose an
actual conflict of interest because it may have an adverse
affect on counsel’s performance. See Mickens, 535 U.S. at
175-176 (declining to decide whether when an attorney is
constrained by successive representation, only an adverse
affect on the attorney’s performance must be shown or
whether prejudice must be shown in order to obtain relief, but
not questioning that successive conflicts may pose Sixth
Amendment difficulties); see also Lewis, 391 F.3d at 989
(applying Sixth Amendment analysis to question of succes-
sive representation); Jeffers, 520 F.2d at 1265, 1265 n.14 (dis-
cussing conflicts of interest based on the prior representation
of a prosecution witness by defense counsel and citing cases
from the 5th, 1st, 2d, and 3d Circuits recognizing the potential
for such conflicts).

   [9] The present record is insufficient to determine whether
an actual conflict of interest existed. Mr. Buchanan failed to
impeach Mr. Flamm with his prior conviction, his probation
status, and on multiple points of his testimony. These omis-
sions appear to be critical in light of the impact they could
have on the jury’s perception of Mr. Alberni’s credibility and
his propensity for violence. Mr. Flamm was called as a rebut-
tal witness to impeach Mr. Alberni. When the only evidence
supporting Mr. Alberni’s claim that the shooting was acciden-
tal was his own testimony, it was critical that the jury find
him credible. However, the failure to question Mr. Flamm
regarding his prior conviction, his probation status, and his
inconsistent testimony is not necessarily attributable to a con-
9190                  ALBERNI v. MCDANIEL
flict. A link between deficient performance and the conflict of
interest must be shown. See Lewis, 391 F.3d at 998-999 (con-
sidering link between counsel’s omissions in cross-
examination and conflict); Lockhart v. Terhune, 250 F.3d
1223, 1231 (9th Cir. 2001) (requiring petitioner to show “that
the attorney’s behavior seems to have been influenced by the
conflict”). The district court did not conduct an evidentiary
hearing. Thus, Mr. Buchanan has not been interrogated con-
cerning his failure to impeach Mr. Flamm regarding his crimi-
nal record and his inconsistent testimony. Although Mr.
Buchanan’s testimony on this matter would not be conclusive,
Sanders v. Ratelle, 21 F.3d 1446, 1452 (9th Cir. 1994), there
may be legitimate tactical reasons for Mr. Buchanan’s deci-
sion not to impeach Mr. Flamm on these matters. We will not
speculate about his cross-examination strategy. See Bragg v.
Galaza, 242 F.3d 1082, 1087 (9th Cir. 2001) (refusing to
speculate regarding whether the attorney’s conflict was the
“cause of any inactions” on the part of the attorney and stating
that the attorney “may have had valid tactical reasons”);
Mickens, 535 U.S. at 177 (O’Connor, J., concurring) (“[O]ur
role is not to speculate about counsel’s motives or about the
plausibility of other litigation strategies.”). However, without
Mr. Buchanan’s testimony, we cannot reach a satisfactory res-
olution of the question whether Mr. Buchanan’s prior repre-
sentation of Mr. Flamm adversely affected his defense of Mr.
Alberni.

   [10] We conclude that an evidentiary hearing is necessary
to resolve this issue. A petitioner is entitled to an evidentiary
hearing if he (1) alleges facts, which, if proven, would entitle
him to relief; and (2) show that he did not receive a full and
fair hearing in state court either at trial or in a collateral pro-
ceeding. Karis v. Calderon, 283 F.3d 1117, 1126-27 (9th Cir.
2002). Mr. Alberni has alleged that Mr. Buchanan only grudg-
ingly accepted the trial court’s “absolution” from his conflict
of interest, and that due to the conflict, he failed to impeach
Mr. Flamm on several key points. If these allegations are true,
                     ALBERNI v. MCDANIEL                   9191
Mr. Alberni is entitled to relief. However, the record is not
sufficient to determine if these allegations are true.

   Mr. Alberni did not receive a full and fair hearing on this
question in state court. The conflict was presented to the
Nevada Supreme Court on direct appeal. Accordingly, the
Nevada Supreme Court was limited to a review of the trial
record. It did not have the benefit of Mr. Buchanan’s testi-
mony regarding the tactical reasons, if any, behind his limited
cross-examination. Its conclusion that there was no actual
conflict of interest rested on an incomplete record.

   Mr. Alberni’s postconviction petition was denied without
an evidentiary hearing. The Nevada District Court reasoned
that no hearing was necessary because the claim of a conflict
was a “naked allegation.” On appeal from the decision of the
Nevada District Court, the Nevada Supreme Court did not
address the denial of an evidentiary hearing. In his state post-
conviction proceedings, Mr. Alberni requested appointment of
counsel to represent him. His request was denied. Because
Mr. Alberni sought counsel and it was denied, he has not
neglected his rights. See Bragg, 242 F.3d at 1090 (stating that
a federal court may not hold an evidentiary hearing if the peti-
tioner neglected his rights in state court).

   Should the evidentiary hearing demonstrate that Mr.
Buchanan’s performance was adversely affected, the question
remains whether prejudice will be presumed, or whether Mr.
Alberni must demonstrate, under Strickland v. Washington,
466 U.S. 668, 694 (1984), a probable impact on the result of
his trial. The Nevada Supreme Court concluded that in this
case, had an actual conflict of interest been shown, prejudice
would be presumed. The question whether prejudice must be
shown in cases of successive representation is one that the
Supreme Court specifically left open in Mickens. See Mick-
ens, 535 U.S. at 176 (“Whether [Cuyler] should be extended
to [cases of successive representation] remains, as far as the
jurisprudence of this Court is concerned, an open question.”).
9192                 ALBERNI v. MCDANIEL
In Mickens, the Court concluded that in cases of concurrent
conflicts, only an adverse effect on the attorney’s perfor-
mance must be shown in order to obtain relief. In other words,
after an actual conflict is demonstrated, relief must be
afforded regardless of prejudice. However, the Court implied
that in cases of successive conflicts, the more stringent Strick-
land prejudice standard may be applied. In addition to show-
ing an actual conflict, that is an adverse effect on the
attorney’s performance, the petitioner may be required to
show prejudice. The Court reasoned that with successive con-
flicts, there is less potential for a conflict to prejudice the
defendant, and so the court need not necessarily engage in the
same presumption of prejudice. Id.

   [11] In Lewis, a case we decided after AEDPA was
enacted, we concluded that an attorney’s former representa-
tion of a prosecution witness resulted in an actual conflict of
interest that impacted his representation. Lewis, 391 F.3d at
997-1000. We applied the more permissive standard that only
an adverse effect on the attorney’s performance, and not prej-
udice, needed to be shown to establish a Sixth Amendment
violation. Id. at 997. After concluding that an actual conflict
of interest had been shown, we remanded the case to the dis-
trict court with instructions that the habeas petition be
granted. We did not require the petitioner to show prejudice.
Id. at 999-1000. Because the Supreme Court left open the
question whether prejudice needed to be shown, and consis-
tent with our holding, we hold that the Nevada Supreme
Court’s conclusion that prejudice could be presumed was not
contrary to clearly established federal law as determined by
the Supreme Court.

                       CONCLUSION

  We vacate the decision of the district court regarding the
conflict of interest claim with instructions that an evidentiary
hearing be conducted on the question whether “some effect on
counsel’s handling of particular aspects of the trial was like-
                     ALBERNI v. MCDANIEL                    9193
ly” due to the potential conflict. See Lockhart, 250 F.3d at
1231 (articulating standard for adverse effect). Should the dis-
trict court conclude that an actual conflict of interest existed,
Mr. Alberni need not show prejudice. We affirm the district
court’s ruling that the Nevada Supreme Court’s conclusion
that Mr. Alberni’s due process rights were not violated by the
introduction of character evidence is not objectively unrea-
sonable.

  AFFIRMED IN PART; VACATED AND REMANDED
IN PART.



McKEOWN, Circuit Judge, concurring in part and dissenting
in part:

   I concur in Part I of the opinion. I write separately because
it is important to underscore that the Supreme Court’s deci-
sion to pass on a question, even expressly, is not automati-
cally the death knell for habeas relief. I dissent as to Part II
because the attorney conflict issue here involves successive
representation and Alberni is required to establish prejudice
under Strickland v. Washington, 466 U.S. 668 (1984). The
majority relieves him of this burden, an approach—as
explained in Mickens v. Taylor, 535 U.S. 162, 174-75 (2002)
—that has not been established by Supreme Court precedent.

I.   AEDPA RELIEF MAY BE AVAILABLE FOR RESERVED ISSUES

   I concur in Part I of the opinion, with the understanding
that the Supreme Court’s reservation of a specific question,
expressly or otherwise, does not, in itself, preclude habeas
review under the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), 28 U.S.C. § 2254. In these situa-
tions, federal courts may still test the state court decision
against clearly established underlying constitutional princi-
9194                 ALBERNI v. MCDANIEL
ples, as laid out by the Supreme Court. Ferrizz v. Giurbino,
432 F.3d 990, 993 (9th Cir. 2005).

   The footnote found in Estelle v. McGuire as to reservation
of the propensity evidence question does not preclude
AEDPA review; instead, it simply points out that nothing in
Estelle is intended to resolve that issue: We “express no opin-
ion on whether a state law would violate the Due Process
Clause if it permitted the use of ‘prior crimes’ evidence to
show propensity to commit a charged crime” because we
“need not reach the issue” to decide the case. 502 U.S. 62, 75
n.5 (1991); see also Ferrizz, 432 F.3d at 993 (holding a simi-
lar type footnote did not preclude AEDPA review).

   The question then is whether the Supreme Court has “ ‘bro-
ken sufficient legal ground to establish [the] asked-for consti-
tutional principle, [because] the lower federal courts cannot
themselves establish such a principle with clarity sufficient to
satisfy the AEDPA bar.’ ” Ferrizz, 432 F.3d at 993 94 (quot-
ing Williams v. Taylor, 529 U.S. 362, 381 (2000)). The
Supreme Court has not spoken directly on whether propensity
evidence violates the Constitution’s guarantee of due process
found in the Fourteenth Amendment. Significantly, the cur-
rent reach of due process for propensity evidence does not
extend past the generic and very narrow standard of “funda-
mental fairness” or “fundamental conceptions of justice,”
Dowling v. United States, 493 U.S. 342, 352-53 (1990),
which, for the purposes of AEDPA’s clearly established fed-
eral law requirement, is barely one step removed from the
Constitution’s recitation of due process itself. The scant sup-
ply of Supreme Court precedent applicable to the propensity
evidence issue does not, in my opinion, provide sufficient
“clearly established Federal law, as determined by the
Supreme Court of the United States” under § 2254(d)(1).

  Given the current posture of Supreme Court precedent, I
concur that the Nevada Supreme Court did not violate
AEDPA in deciding this claim. Although the most general
                     ALBERNI v. MCDANIEL                   9195
standard of due process is not sufficient to meet the clearly
established federal law requirement for propensity evidence,
we must be mindful that when there is applicable and clearly
established federal law in Supreme Court precedent, it should
be applied on habeas review, even if the Supreme Court
expressly declined to decide the specific issue. Robinson v.
Ignacio, 360 F.3d 1044, 1057 (9th Cir. 2004) (“ ‘rules of law
may be sufficiently clear for habeas purposes even when they
are expressed in terms of a generalized standard rather than as
a bright-line rule’ ”) (quoting Williams, 529 U.S. at 382). The
proverbial “take a pass” footnote alone should not prevent
AEDPA review.

II.   STRICKLAND PREJUDICE IS REQUIRED      FOR A   SUCCESSIVE
      REPRESENTATION CLAIM

   I respectfully dissent as to Part II of the opinion. The
majority, relying on state court and circuit precedent, improp-
erly relieves Alberni’s burden to show Strickland prejudice
for his Sixth Amendment successive representation claim.
Strickland remains the binding precedent for successive repre-
sentation claims, and no clearly established Supreme Court
precedent has imported a presumption of prejudice. Mickens,
535 U.S. at 174-75. By reversing the state court and granting
relief in violation of Strickland, the majority’s view is con-
trary to clear Supreme Court precedent and AEDPA—the fed-
eral courts “shall entertain an application for a writ of habeas
corpus in behalf of a person in custody pursuant to the judg-
ment of a state court only on the ground that he is in custody
in violation of the Constitution or laws or treaties of the
United States,” § 2254(a) (emphasis added), and the basis of
the claim must be grounded upon “clearly established Federal
law, as determined by the Supreme Court of the United
States.” § 2254(d)(1); see Williams, 529 U.S. at 405-06 (using
the “clearly established precedent” of Strickland to illustrate
the point that the governing Supreme Court law must be iden-
tified as a prerequisite for AEDPA review).
9196                 ALBERNI v. MCDANIEL
   In Strickland, the Supreme Court established that “[a]n
error by counsel, even if professionally unreasonable, does
not warrant setting aside the judgment of a criminal proceed-
ing if the error had no effect on the judgment. . . . [A]ny defi-
ciencies in counsel’s performance must be prejudicial to the
defense in order to constitute ineffective assistance under the
Constitution.” 466 U.S. at 691-92 (citations omitted). Citing
Cuyler v. Sullivan, 446 U.S. 335, 345-50 (1980), a concurrent
representation case decided four years earlier, the Court rec-
ognized that certain attorney conflicts may give rise to a pre-
sumption of prejudice—the so-called Sullivan prophylaxis—
but “[p]rejudice is presumed only if the defendant demon-
strates that counsel ‘actively represented conflicting interests’
and that ‘an actual conflict of interest adversely affected his
lawyer’s performance.’ ” Strickland, 466 U.S. at 692 (quoting
Sullivan, 446 U.S. at 350) (emphasis added). The Supreme
Court was clear: it is only in concurrent representation cases
(i.e., active representation of conflicting interests) that the
Sullivan prophylaxis applies.

   The question, then, is whether any Supreme Court prece-
dent supports an extension of Sullivan outside concurrent rep-
resentation into successive representation. In the time between
Strickland and the Nevada Supreme Court’s decision, the
United States Supreme Court did not indicate a move from the
confines of Strickland. And then, just a few years ago, the
Court made it abundantly clear in Mickens that a presumption
of prejudice is completely unsupported in successive repre-
sentation cases. In Mickens, the Court chastised the Courts of
Appeals that had improperly presumed prejudice in a variety
of attorney conflict situations outside the concurrent represen-
tation context, including cases involving “counsel’s obliga-
tions to former clients.” 535 U.S. at 174. Such a presumption
is incorrect and unreasonable, according to Mickens, because
Supreme Court precedent “does not clearly establish, or
indeed even support, such expansive application” of the Sulli-
van prophylaxis outside concurrent representation. Id. at 175
(emphasis added). This statement is far more definitive than
                     ALBERNI v. MCDANIEL                   9197
the Supreme Court’s often ambiguous “open question”
approach. Compare Estelle, 502 U.S. at 75 n.5 (“Because we
need not reach the issue, we express no opinion . . . .”). Mick-
ens is more akin to “the question is decided and closed until
further notice.”

   Put another way, Mickens pointedly counsels that a state
court conviction may not be reversed on federal habeas
review upon a mere showing of an actual conflict in a succes-
sive representation case—Strickland prejudice is and has
always been required by the Supreme Court regardless of
what circuit or state court precedent might say. See Earp v.
Ornoski, 431 F.3d 1158, 1184-85 (9th Cir. 2005) (affirming
state court decision because there was no clearly established
federal law relieving the prejudice requirement of Strickland).
Thus, Alberni must show “ ‘a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceed-
ing would have been different.’ ” Mickens, 535 U.S. at 166
(quoting Strickland, 466 U.S. at 694); accord Earp, 431 F.3d
at 1184-85.

   From the record and Nevada Supreme Court opinion, it is
readily apparent that this case involves defense counsel’s past
or former representation of a witness. The same counsel’s rep-
resentation of Alberni at a later date is deemed a successive
representation. Two questions are thus presented: whether
there was an actual conflict and whether Alberni was preju-
diced from the conflict. But even if there were an actual con-
flict, absent prejudice, Alberni’s claim fails. See Strickland,
466 U.S. at 695 (“When a defendant challenges a conviction,
the question is whether there is a reasonable probability that,
absent the errors, the factfinder would have had a reasonable
doubt respecting guilt.”); Allen v. Woodford, 395 F.3d 979,
999 (9th Cir. 2005) (“[E]ven if counsel’s conduct was argu-
ably deficient, in light of the overwhelming evidence of guilt,
[petitioner] cannot establish prejudice.”).

   The question of prejudice may be easily resolved on this
record. Significantly, the Nevada Supreme Court held that
9198                  ALBERNI v. MCDANIEL
there was overwhelming evidence of Alberni’s guilt, and that
this overwhelming evidence rendered harmless propensity
evidence of violence admitted against Alberni. The court’s
finding is not unreasonable and a review of the record sup-
ports the same conclusion for the alleged conflict. Conse-
quently, even if there were deficient performance by
Alberni’s counsel, it was harmless error because, in light of
the overwhelming evidence of guilt, there was no reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.

   Instead of acknowledging the lack of prejudice, the major-
ity proposes to remand for a hearing on the conflict. To what
avail? If there is a conflict, then Alberni will still be required
to demonstrate prejudice; it cannot be presumed. If he cannot
establish prejudice, what is the point of a remand? Apparently
the majority mistakenly believes that prejudice may be pre-
sumed. In doing so, the majority improperly relies on the state
court decision and circuit precedent.

   The Nevada Supreme Court denied Alberni’s successive
representation claim under the Sixth Amendment on the
ground that Alberni did not establish an actual conflict. In
doing so, the Nevada court presumed prejudice from the
alleged conflict. Relying on state law, the Nevada Supreme
Court quoted its case Clark v. State, 831 P.2d 1374, 1376
(Nev. 1992), for the proposition that “[a]n actual conflict of
interest which adversely affects a lawyer’s performance will
result in a presumption of prejudice to the defendant.” How-
ever, a review of Clark reveals that the circumstances
involved a conflict of interest arising out of concurrent repre-
sentation, not successive representation.

   Even though this presumption is at odds with Strickland,
we may affirm a habeas denial on any ground supported by
the record, even if the reasoning differs from that of the lower
court. Garcia v. Burnell, 33 F.3d 1193, 1195 (9th Cir. 1994)
(§ 2254 AEDPA case where the appellate court affirmed the
                     ALBERNI v. MCDANIEL                    9199
denial of a Sixth Amendment conflict-free representation
claim on grounds different than that offered by the district
court); see also Cooperwood v. Cambra, 245 F.3d 1042, 1046
(9th Cir. 2001) (holding that “when a state court employs the
wrong legal standard, the AEDPA rule of deference does not
apply”); Hinman v. McCarthy, 676 F.2d 343, 349 (9th Cir.
1982) (“It is not the [state law] which is our measuring rod in
habeas corpus proceedings, but the federal Constitution. Our
task is to determine whether [the petitioner’s] federal constitu-
tional rights have been violated.”) (citing § 2254(a)). The
ground for affirming the state court’s denial here is that
Alberni does not attempt to show Strickland prejudice; neither
does the record support such a finding.

   The majority seizes upon the state court’s ill-advised pre-
sumption, reasoning that “[t]he question whether prejudice
must be shown in cases of successive representation is one
that the Supreme Court specifically left open in Mickens.”
Majority Op. at 9191. Contrary to the majority’s reasoning,
for AEDPA purposes, Strickland prejudice is not an “open
question” in successive representation cases. The Supreme
Court unambiguously advised that its precedent does not sup-
port such an application. Mickens, 535 U.S. at 174-75.

   The majority further errs by relying on circuit court prece-
dent to circumvent the Strickland prejudice requirement,
pointing to Lewis v. Mayle—a Ninth Circuit post-AEDPA
successive representation case—where the court stated, with-
out discussion, that if a petitioner can show “ ‘an actual con-
flict of interest [that] adversely affected his lawyer’s
performance’. . . . [he] need not show prejudice to the out-
come of the trial.” 391 F.3d 989, 997 (9th Cir. 2004) (quoting
Sullivan, 446 U.S. at 348). This passing statement in Lewis
was not necessary to its holding, which was limited to grant-
ing the habeas petition based on the state court’s unreasonable
determination that there was no actual conflict. Id. More
importantly, however, in AEDPA terms, this statement stand-
ing alone is simply wrong. Mickens, 535 U.S. at 174-75.
9200                      ALBERNI v. MCDANIEL
   We may not reverse the Nevada Supreme Court’s decision
under reasoning that violates the Supreme Court’s dictate. See
Cooperwood, 245 F.3d at 1046. We test the state court deci-
sion only against United States Supreme Court precedent, and
then grant relief only if the decision is contrary to or an unrea-
sonable application of that precedent.1 Williams, 529 U.S. at
412. “We have always held that federal courts, even on
habeas, have an independent obligation to say what the law
is,” id. at 411 (internal quotations marks omitted), and the law
is Strickland according to the Supreme Court.

   Contrary to controlling Supreme Court precedent, the
majority incorrectly adopts a presumption of prejudice in a
successive representation case, citing the Nevada Supreme
Court and circuit precedent. See § 2254(a) & (d)(1). I would
not order an evidentiary hearing because even if there were an
actual conflict from the successive representation, it would be
harmless in light of the overwhelming evidence of Alberni’s
guilt and the absence of Strickland prejudice. I would there-
fore affirm the state court’s denial of Alberni’s Sixth Amend-
ment claim.




  1
   Circuit precedent is, of course, helpful in our determinations under
AEDPA, but it is not binding on the states. See Earp, 431 F.3d at 1182
(“Circuit court precedent is relevant only to the extent that it clarifies what
constitutes clearly established law.”).
