FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVE HOUSTON, No. 10-15048
Petitioner-Appellant,
D.C. No.
v.
2:04-cv-00785-
JAMES SCHOMIG; NEVADA ATTORNEY RLH-GWF
GENERAL,
OPINION
Respondents-Appellees.
Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, Chief District Judge, Presiding
Submitted February 14, 2011*
San Francisco, California
Filed March 8, 2011
Before: Diarmuid F. O’Scannlain and Stephen S. Trott,
Circuit Judges, and Tena Campbell, District Judge.**
Opinion by Judge Trott
*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Tena Campbell, Senior United States District Judge
for the District of Utah, sitting by designation.
3271
HOUSTON v. SCHOMIG 3273
COUNSEL
Ryan Norwood, Assistant Federal Public Defender, Las
Vegas, Nevada, for the petitioner-appellant.
Dennis C. Wilson, Senior Deputy Attorney General, Las
Vegas, Nevada, for the respondents-appellees.
OPINION
TROTT, Circuit Judge:
Petitioner Houston’s timely appeal arises from the result of
an evidentiary hearing ordered by us on remand in Houston
3274 HOUSTON v. SCHOMIG
v. Schomig, 533 F.3d 1076 (9th Cir. 2008). The purpose of the
evidentiary hearing was “to determine whether a conflict of
interest adversely affected [Houston’s] counsel’s performance
and, if so, whether there is a reasonable probability that the
result of the trial would have been different in the absence of
that effect.” Id. at 1083. The possible conflict issue arose
because Houston’s lawyer in his trial on charges of conspir-
acy to commit murder, etc., Craig Jorgenson, was part of the
same Public Defender’s Office that represented a key witness
against Houston — Terrance Chadwick — in a previous case.
Jorgenson himself had nothing to do with Chadwick’s repre-
sentation by another lawyer in his office.
On remand, the district court determined that Houston “was
not adversely effected [sic] by the prior representation.” We
review de novo the district court’s denial of a habeas petition
raising an ineffective assistance of counsel claim. See Howard
v. Clark, 608 F.3d 563, 567 (9th Cir. 2010). We review for
clear error the district court’s factual findings. See id. Because
the district court’s findings and conclusions are well sup-
ported by the record and the law, we affirm.
DISCUSSION
[1] Houston’s lawyer, Craig Jorgenson, never personally
represented the witness, Chadwick, against his client Houston.
Thus, in this context, the Sixth Amendment’s right to conflict-
free counsel was violated only if Jorgenson’s office’s prior
representation of Chadwick “adversely affect[ed] [his] perfor-
mance.” Alberni v. McDaniel, 458 F.3d 860, 870 (9th Cir.
2006). This is so because “ ‘an actual conflict of interest
means precisely a conflict that affected counsel’s performance
— as opposed to a mere theoretical division of loyalties.’ ” Id.
(quoting Mickens v. Taylor, 535 U.S. 162, 171 (2002)
(emphasis and alterations omitted)).
Houston’s attorney relies on various circumstances in his
attempt to show that Jorgenson’s performance adversely
affected Houston.
HOUSTON v. SCHOMIG 3275
First and foremost, Jorgenson made a failed motion prior to
trial to withdraw from the case, filed on the ostensible ground
that he felt conflicted by his office’s prior representation of
Chadwick. In arguing this motion, Jorgenson said at the time
that “his heart was going to be with Mr. Chadwick,” whom
he would have to cross-examine in his client’s defense.
[2] When this motion and statement were carefully
explored on remand, however, Jorgenson’s statement about
his “heart” takes on a meaning which supports the district
court’s conclusion:
(By Houston’s Attorney)
Q. Okay. Do you recall telling Judge Mosley that
— when the conflict was being discussed that
your heart would be with Mr. Chadwick? Do
you remember that statement?
A. Yes.
Q. What did you mean by that?
A. I meant that since we had represented Mr.
Chadwick in his preceding trial that he — we
owed a loyalty to him and that it could very
well look to Mr. Houston that I would not give
him a hundred percent because Mr. Chadwick
was our — was our prior client too so, he’d
have to wonder who I actually — who we actu-
ally cared most about, or how could we actually
be vigorous in defending him when that
required us trying to make Mr. Chadwick look
bad when he had been our prior client.
...
(By Counsel for the Warden)
3276 HOUSTON v. SCHOMIG
Q. All right. On December 12th, the following day,
the judge had a hearing on your motion to with-
draw as counsel because the Public Defender’s
Office had previously represented Mr. Chad-
wick?
A. Right.
Q. Did you argue to the Court during that hearing
that this previous representation by your office
was a conflict of interest?
A. Yes.
Q. And what were you trying to accomplish
through this motion or this hearing?
A. To get what Mr. Houston wanted and that was
his — the private attorney that he had hired to
represent him.
Q. So you wanted — basically it was, as you said
previously in your earlier testimony, you were
trying again to persuade Judge Mosley to let the
new attorney in and to let you out and continue
the case?
A. Right.
Q. So that was your main goal?
A. Yeah.
Q. Okay. Did you actually feel conflicted by your
office’s prior representation of Mr. Chadwick?
A. No.
HOUSTON v. SCHOMIG 3277
Q. All right. How would you characterize this con-
flict where your office, two years ago, different
attorneys, had previously represented Mr. Chad-
wick?
A. Ask the question again.
Q. Okay. How would you characterize the conflict
that you perceived?
A. Oh, technical.
Q. So it was a technical conflict. You weren’t, as
you previously testified, conflicted by the fact
that — of this previous representation?
A. Not me personally. I didn’t feel conflicted, no.
[3] Jorgenson also explained that “[i]f my office had repre-
sented a guy in the past and he is now a complaining witness,
I get off the case, end of story.” He added that he did not alter
his representation of Houston in any way because the Public
Defender’s Office had previously represented Chadwick.
Under questioning by the trial judge, Chadwick waived his
attorney-client privilege, leaving Jorgenson free to attack him
on cross as he saw fit.
The second circumstance offered by Houston’s attorney in
support of his case is that Jorgenson “failed to cross-examine
Chadwick about the circumstances of his prior conviction.”
[4] Jorgenson testified, however, that the alleged conflict
did not cause him to limit his use of the prior conviction in
impeaching Chadwick. Moreover, Jorgenson began his cross-
examination, according to his testimony, with an alternative
line of questioning that was intended to show the jury “that
Mr. Chadwick had a compelling reason to get even with Mr.
Houston and therefore he was very biased against him and
3278 HOUSTON v. SCHOMIG
would say anything to get him in trouble.” Jorgenson thus
demonstrated that his ability to impeach Chadwick was not
impaired by any feeling of loyalty toward him.
[5] Third, Jorgenson did not elicit from Chadwick his
parole status. However, this alleged failure did not arise from
any sense of obligation to Chadwick but from trial court rul-
ings or possibly just oversight.
Finally, Chadwick had flunked a polygraph in the earlier
case. Jorgenson found out about this possible credibility fac-
tor by reading his office’s file about that case. He made no
attempt to introduce this factor in Houston’s trial. Houston’s
attorney now says this was a material failure caused by the
conflict.
[6] Jorgenson said he felt “uncomfortable” after reading
the polygraph file, but he also explained that the polygraph
failure was not admissible in any event. He suggested that
because of having read the file he “didn’t spend any time try-
ing to come up with something extremely imaginative about
the failed polygraph test,” but also that there was no way he
could ever “get it in.” The district court agreed with Jorgen-
son that the polygraph results were not admissible without a
joint stipulation. He noted that the prosecutor would not have
consented. Thus, no adverse effect can be attached to this
alleged failure.
[7] Finally, Houston attempts to claim that Jorgenson’s
“failures” amounted to actionable incompetence under Strick-
land v. Washington, 466 U.S. 668 (1984). This claim may be
beyond the scope of the remand, but in any event, Houston
has not demonstrated any prejudice from the omissions of
which he complains.
AFFIRMED.