                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 15 2010

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




                            FOR THE NINTH CIRCUIT



ARMONDO SHELBY,                                  No. 08-35695

              Petitioner - Appellant,            D.C. No. 3:07-cv-05466-BHS

  v.
                                                 MEMORANDUM *
KENNETH QUINN,

              Respondent - Appellee.



                    Appeal from the United States District Court
                      for the Western District of Washington
                    Benjamin H. Settle, District Judge, Presiding


                        Argued and Submitted June 10, 2010
                               Seattle, Washington

Before: CANBY, CALLAHAN and IKUTA, Circuit Judges.

       Armondo Shelby (“Shelby”) appeals the district court’s denial of his petition

for habeas corpus. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253,

and we affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      This case is governed by the Anti-Terrorism and Effective Death Penalty

Act of 1996 (“AEDPA”), and, accordingly, we may grant relief only if “the state

court adjudication of the merits of a claim ‘(1) resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United States; or (2) resulted in a

decision that was based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding.’” Dows v. Wood, 211 F.3d

480, 484 (9th Cir. 2000) (quoting 28 U.S.C. § 2254(d)).

      The last reasoned state court decision is the Washington Supreme Court’s

denial of discretionary review issued by its Commissioner. See Barker v. Fleming,

423 F.3d 1085, 1091 (9th Cir. 2005); Wash. App. R. P. 1.1(f). The court’s

conclusion that Shelby failed to establish a violation of his Sixth Amendment right

to conflict-free counsel is not contrary to, or the result of an unreasonable

application of, clearly established federal law as determined by the Supreme Court.

      To establish a violation of the Sixth Amendment right to conflict-free

counsel, a defendant must show that an actual conflict of interest “adversely

affected his counsel’s performance.” Mickens v. Taylor, 535 U.S. 162, 171-72 &

n.5 (2002) (citing Cuyler v. Sullivan, 446 U.S. 335, 349-50 (1980)). “Until . . .




                                           2
defendant shows that his counsel actively represented conflicting interests, he has

not established the “constitutional predicate for his claim.” Id. at 175.

          Because Shelby has not demonstrated that his interests and those of the

potential witness were actually adverse to one another, he has not shown that

counsel “actively represented conflicting interests.” Id.; cf. Holloway v. Arkansas,

435 U.S. 475 (1978) (reversing the convictions of three co-defendants whose

counsel was forced to represent all of them at a joint trial despite counsel’s

objections about the defendants’ divergent interests); Sullivan, 446 U.S. at 349-50

(remanding for further proceedings where counsel represented multiple defendants

charged with the same crime). Moreover, Shelby has offered no evidence during

the post-conviction proceedings to show that counsel’s decision not to conduct a

follow-up interview or to have the witness testify at trial was unreasonable or

adversely affected the representation. See Mickens, 535 U.S. at 171-72. There is

no clearly established Supreme Court decision requiring us to grant relief on this

record.

      AFFIRMED.




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