Campbell v. Rice

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ANTHONY ALEXANDER CAMPBELL,  No. 99-17311
Petitioner-Appellant,
v.  D.C. No.
CV-98-03265-SBA
BERT RICE,
OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, District Judge, Presiding

Argued and Submitted En Banc
December 15, 2004—Pasadena, California

Filed May 20, 2005

Before: Mary M. Schroeder, Chief Judge,
Warren J. Ferguson, Stephen Reinhardt, Pamela Ann Rymer,
Andrew J. Kleinfeld, Barry G. Silverman, Susan P. Graber,
Kim McLane Wardlaw, Ronald M. Gould, Richard R. Clifton
and Jay S. Bybee, Circuit Judges.

Opinion by Judge Clifton;
Dissent by Judge Ferguson

5443
5446 CAMPBELL v. RICE

COUNSEL

Howard M. Ullman (argued), Walter F. Brown, Jr., San Fran-
cisco, California, for the petitioner-appellant.

Peggy S. Ruffra (argued), John R. Vance, Jr., Office of the
Attorney General, State of California, for the respondent-
appellee.
 CAMPBELL v. RICE 5447
OPINION

CLIFTON, Circuit Judge:

Petitioner Anthony Alexander Campbell appeals the denial
by the district court of his petition for habeas corpus under 28
U.S.C. § 2254. Petitioner challenges his California state court
burglary conviction on two grounds. He argues that his trial
counsel provided ineffective assistance because of a conflict
of interest: she was being prosecuted at the same time by the
same district attorney’s office. In addition, he maintains that
the trial court violated his due process rights by excluding him
from an in-chambers meeting attended by the trial judge, the
prosecutor, and his defense attorney, during which the court
was informed of the prosecution of the defense attorney and
concluded that the attorney did not have a conflict of interest.
When presented with these arguments, the California state
courts denied relief to Petitioner. Applying the deferential
standard of review established under the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), we affirm the
district court’s denial of the habeas petition.

I. BACKGROUND

On May 26, 1995, the police arrested Petitioner while he
was attempting to burglarize a home. After he consented to a
search of his vehicle, the police recovered jewelry and other
personal property. A later search of Petitioner’s home resulted
in the discovery of 239 items that had been reported stolen by
individuals whose homes had been burglarized. Based on this
evidence, the Santa Clara County District Attorney’s Office
charged Petitioner with multiple counts of first-degree bur-
glary and several counts of attempted burglary.

Petitioner retained attorney Maureen McCann to represent
him, and McCann appeared on his behalf at the December 4,
1995, preliminary hearing. A month later, on January 9, 1996,
McCann was herself arrested for attempting to transport
5448 CAMPBELL v. RICE
methamphetamine into the San Martin Criminal Court Justice
Facility. The Santa Clara County District Attorney’s Office
charged her with one count of felony drug possession. On
February 6, 1996, McCann was arraigned.

Petitioner’s trial commenced two days later. On the first
day of trial, the court held a private in-chambers conference
with McCann and the deputy district attorney who was prose-
cuting Petitioner. Petitioner was not notified of this meeting
and did not attend. During this conference, the deputy district
attorney informed the court that his office was prosecuting
McCann on unspecified charges. The deputy district attorney
represented to the court that his office would not give
McCann favorable treatment under any circumstances.
McCann declined to comment. The trial court then concluded
that McCann’s simultaneous prosecution by the district attor-
ney’s office did not present a conflict of interest concerning
her continued representation of Petitioner.1
1
The dissent speculates that the deputy district attorney “deliberately
withheld from the trial judge material facts pertaining to McCann’s crimi-
nal history, and . . . colluded with McCann to deny [Petitioner] the oppor-
tunity to consider retaining other counsel of his choice.” Post at 5457.
Contrary to the dissent’s assertions, the record provides no evidence that
the deputy district attorney deliberately withheld information or colluded
with Petitioner’s attorney. Indeed, it is not clear from the record that any
information was in fact withheld from the trial judge. The transcript from
the in-chambers hearing, quoted in the dissenting opinion, post at 5456-57,
on its face does not include all that was actually said. Rather, it is evident
that there was an off-the-record discussion among the attorneys and the
trial judge before the result of the discussion was put on the record, a com-
mon practice. The transcript begins with a comment by the judge that the
prosecutor had something to put on the record, and the statements that fol-
lowed provide what appears to be a brief summary in conclusory terms of
something that was already discussed.
It is simply impossible to tell from the transcript precisely what disclo-
sure was made to the trial judge, what inquiries the judge might have
made, if any, or what responses were provided to any inquiries. There is
nothing in the transcript which demonstrates collusion between the two
attorneys. We cannot assume more than the transcript tells us, of course,
and our decision is not premised on any finding that there was, in fact,
more detailed disclosure to the trial judge. Regardless, the statements in
the dissenting opinion are not supported by the record, and Petitioner him-
self has not made such accusations.
 CAMPBELL v. RICE 5449
The trial proceeded, and the jury found Petitioner guilty of
eighteen counts of first-degree burglary and one count of
attempted first-degree burglary. The trial court sentenced him
to serve an aggregate term of fourteen years in prison. Peti-
tioner filed a direct appeal and a state habeas petition with the
California Court of Appeal. That court affirmed his convic-
tion and denied his habeas petition on December 15, 1997.
Petitioner then sought review from the California Supreme
Court, which denied review of both matters on April 1, 1998.

Petitioner filed a habeas petition under 28 U.S.C. § 2254 in
federal district court on August 25, 1998. The district court
denied this petition, and Petitioner filed a timely notice of
appeal. The certificate of appealability (COA) granted by a
two-judge panel of this court only encompasses the question
of whether Petitioner received effective assistance of counsel.
We expand the COA to consider the question of whether Peti-
tioner’s right to due process was violated.

II. DISCUSSION

We review de novo the district court’s decision to deny
Petitioner’s habeas petition. Bean v. Calderon, 163 F.3d 1073,
1077 (9th Cir. 1998). Because the petition was filed after
April 24, 1996, the effective date of AEDPA, the provisions
of that statute apply. Rios v. Rocha, 299 F.3d 796, 799 n.4
(9th Cir. 2002).

Under AEDPA, a habeas petition cannot be granted unless
the state court decision was: (1) “contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States”; or
(2) “based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.”
28 U.S.C. § 2254(d)(1)-(2). AEDPA’s “clearly established
law” requirement limits the area of law on which a habeas
court may rely to those constitutional principles enunciated in
Supreme Court decisions. See Williams v. Taylor, 529 U.S.
5450 CAMPBELL v. RICE
362, 381-82 (2000). Only Supreme Court precedents are bind-
ing on state courts under AEDPA, but our precedents may be
pertinent to the extent that they illuminate the meaning and
application of Supreme Court precedents. Casey v. Moore,
386 F.3d 896, 907 (9th Cir. 2004). When applying these stan-
dards, we review the “last reasoned decision” by a state court.
See Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002).

A. Ineffective Assistance of Counsel

[1] We first consider whether the state court’s determina-
tion that the alleged conflict of interest did not cause Petition-
er’s attorney to render ineffective assistance was contrary to,
or an unreasonable application of, clearly established federal
law. See 28 U.S.C. § 2254(d). The Sixth Amendment right to
counsel includes the “correlative right to representation that is
free from conflicts of interest.” Wood v. Georgia, 450 U.S.
261, 271 (1981). Upon notification that an actual or potential
conflict of interest exists, a trial court has the obligation “ei-
ther to appoint separate counsel or to take adequate steps to
ascertain whether the risk was too remote to warrant separate
counsel.” Holloway v. Arkansas, 435 U.S. 475, 484 (1978);
see also Wood, 450 U.S. at 272 & n.18. If the trial court fails
to undertake either of these duties, the defendant’s Sixth
Amendment rights are violated. See Holloway, 435 U.S. at
484. Even if a defendant’s Sixth Amendment rights have been
violated in this manner, though, the defendant cannot obtain
relief unless he can demonstrate that his attorney’s perfor-
mance was “adversely affected” by the conflict of interest.
Mickens v. Taylor, 535 U.S. 162, 174 (2002).2

[2] In its treatment of Petitioner’s case, the California Court
2
In Mickens, the Supreme Court made clear that Holloway’s mandate of
automatic reversal applied only to situations where a defense counsel had
objected to the multiple representation of co-defendants and the trial court
did not conduct an inquiry concerning this potential conflict. Mickens, 535
U.S. at 168.
 CAMPBELL v. RICE 5451
of Appeal assumed that an actual conflict of interest existed
and reviewed what had occurred to determine whether Peti-
tioner’s representation was adversely affected. The approach
adopted by the court of appeal, which led to its rejection of
Petitioner’s ineffective assistance of counsel argument, was
not contrary to clearly established federal law.

Nor was the state court’s decision an unreasonable applica-
tion of federal law to the facts of the case. As noted, the state
court of appeal assumed there had been a conflict of interest
and denied relief because it concluded that the representation
of Petitioner had not been adversely affected. Petitioner raises
two arguments to demonstrate that his attorney’s performance
was adversely affected.

[3] First, Petitioner maintains that his attorney improperly
waived a hearing on the admissibility of the DNA evidence
because, as of the date of the trial, the California appellate
courts had not stated in a published opinion that the method
of DNA testing used, known as PCR, was admissible. The
record indicates, however, that at trial, the prosecution
requested that the court take judicial notice of the numerous
times that PCR blood tests had been previously deemed
admissible in the Santa Clara County Superior Court. Further-
more, after Petitioner’s trial, the California appellate courts
concluded that PCR blood testing is generally accepted as a
reliable technique by the relevant scientific community. See
People v. Morganti, 50 Cal. Rptr. 2d 837, 855 (Cal. Ct. App.
1996). Thus, as the state court of appeal determined, the
record provides no basis to conclude that a challenge to the
admissibility of the DNA evidence would have been success-
ful. See Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994)
(concluding that an attorney’s failure to file a motion was not
ineffective assistance of counsel and noting that the attorney’s
decision not to file the motion was “vindicated by the results
in related cases” where the motions were made, but they
failed).
5452 CAMPBELL v. RICE
[4] Second, Petitioner argues that McCann provided inef-
fective assistance by failing to present evidence of other bur-
glaries which occurred in the area but as to which Petitioner
had not been charged. In concluding that this claim did not
demonstrate that Petitioner’s representation was adversely
affected, the state court correctly recognized that the fact that
other crimes had occurred in the area did not exonerate Peti-
tioner. In addition, McCann’s decision not to present this evi-
dence was reasonable because the jury could have inferred
from this information that Petitioner had committed other
crimes in addition to the ones that were charged. Thus, it was
not an unreasonable application of federal law for the state
court to conclude that Petitioner had not established that he
was adversely affected by the alleged conflict of interest from
which his attorney suffered.

B. Due Process

[5] Next, we consider Petitioner’s claim that his due pro-
cess rights were violated because he was excluded from the
in-chambers conference where the trial court concluded that
his attorney did not have a conflict of interest. A defendant
has a right to be present at any critical stage of his criminal
proceedings if his presence would contribute to the fairness of
the procedure. Kentucky v. Stincer, 482 U.S. 730, 745 (1987);
United States v. Gagnon, 470 U.S. 522, 527 (1985) (per
curiam) (concluding that the defendants’ absence did not vio-
late the Due Process Clause where their presence was not
needed to “ensure fundamental fairness” and they could not
have added to or gained from being present at the confer-
ence). We need not decide whether it was error to exclude
Petitioner from the conference in question here, though,
because even if the exclusion was error, it does not require
reversal.

[6] The Supreme Court has “adopted the general rule that
a constitutional error does not automatically require reversal
of a conviction . . . and has recognized that most constitu-
 CAMPBELL v. RICE 5453
tional errors can be harmless.” Arizona v. Fulminante, 499
U.S. 279, 306 (1991). Automatic reversal due to a constitu-
tional error is required only if this error was a “structural
defect” that permeated “[t]he entire conduct of the trial from
the beginning to end” or “affect[ed] the framework within
which the trial proceeds.” Id. at 309-10. If the error was sim-
ply a “trial error,” on the other hand, a court conducts a
harmless-error review. A trial error “occur[s] during the pre-
sentation of the case to the jury, and . . . may therefore be
quantitatively assessed in the context of other evidence pres-
ented in order to determine whether its admission was harm-
less beyond a reasonable doubt.” Id. at 307-08.

[7] The list of structural errors that the Supreme Court has
recognized is short and limited. These structural errors
include: “total deprivation of the right to counsel at trial,” see
Gideon v. Wainwright, 372 U.S. 335 (1963); “a judge who
was not impartial,” see Tumey v. Ohio, 273 U.S. 510 (1927);
“unlawful exclusion of members of the defendant’s race from
a grand jury,” see Vasquez v. Hillery, 474 U.S. 254 (1986);
“the right to self-representation at trial,” see McKaskle v. Wig-
gins, 465 U.S. 168 (1984); and “the right to [a] public trial,”
see Waller v. Georgia, 467 U.S. 39 (1984). Fulminante, 499
U.S. at 309-10. Since Fulminante, the Court has also recog-
nized that “[d]enial of the right to a jury verdict of guilt
beyond a reasonable doubt,” is structural error. See Sullivan
v. Louisiana, 508 U.S. 275, 281 (1993).

[8] The Supreme Court has never held that the exclusion of
a defendant from a critical stage of his criminal proceedings
constitutes a structural error. To the contrary, in Rushen v.
Spain, 464 U.S. 114, 117 (1983) (per curiam), the Court
determined that the fact that the defendant was denied the
right to be present during an ex parte communication between
the judge and a juror was a trial error that was subject to
harmless error analysis. The court explained that the right to
be present during all critical stages of the proceedings and the
right to be represented by counsel, “as with most constitu-
5454 CAMPBELL v. RICE
tional rights, are subject to harmless error analysis unless the
deprivation, by its very nature, cannot be harmless.” Id. at 117
n.2 (citations omitted).

[9] The Court’s decision in Rushen supports our conclusion
that any error resulting from Petitioner’s exclusion from the
in-chambers meeting was not a structural error but was,
instead, trial error subject to harmless error review. As
already discussed, Petitioner has not demonstrated that he was
adversely affected by his attorney’s alleged conflict of inter-
est. He does not allege any other adverse effect from his
exclusion from the in-chambers conference, beyond the
claims already discussed.3 The determination of the California
3
The dissent advances the argument that because Petitioner was
excluded from the in-chambers meeting and was thus unaware of his attor-
ney’s potential conflict of interest, he was deprived “of his constitutional
right to seek other counsel of his choice — an error that is per se prejudi-
cial, structural, and which requires automatic reversal.” Post at 5460.
Cloaking the error in terms of the Sixth Amendment right to counsel, how-
ever, does not automatically identify a structural error requiring automatic
reversal. As noted above, the Supreme Court explicitly held in Mickens,
535 U.S. at 174, that even if a defendant’s Sixth Amendment rights were
violated due to his attorney’s conflict of interest, the defendant is not enti-
tled to relief unless he can demonstrate that his attorney’s performance
was “adversely affected” by the conflict of interest. See Belmontes v.
Woodford, 350 F.3d 861, 883 n.4, 885 (9th Cir. 2003) (“To establish a
Sixth Amendment violation based on conflict of interest, the defendant
must show that an actual conflict of interest adversely affected his law-
yer’s performance.”)
It is apparent that Petitioner was not denied the right to seek counsel of
his choice: McCann was an attorney retained by him, and he made no
request that she be replaced or that another attorney be permitted to substi-
tute for her. This case is simply not like the cases cited by the dissent to
support its assertion of per se prejudice. That Petitioner was not fully
informed of McCann’s potential conflict of interest does not mean that he
was denied the right to choose a lawyer. The characterization which the
dissent seeks to attach here could be offered any time a defendant’s attor-
ney had an undisclosed conflict of interest. When a conflict of interest is
not fully disclosed, it is inherent that the defendant might have elected to
change counsel if he had known of the conflict. Yet Mickens and Bel-
montes clearly require that to obtain relief a defendant must demonstrate
an adverse impact. Petitioner has failed to satisfy that requirement.
 CAMPBELL v. RICE 5455
Court of Appeal that any error was harmless — that is, that
Petitioner’s representation was not adversely affected and that
he was not denied a fair and impartial trial — was not an
unreasonable application of federal law as applied to the facts
of this case. See Mitchell v. Esparza, 540 U.S. 12, 16 (2003)
(per curiam) (explaining that a state court is not required to
cite or demonstrate an awareness of Supreme Court cases as
long as its reasoning and result do not contradict them).

III. CONCLUSION

[10] For the foregoing reasons, we conclude that the state
court’s determination that Petitioner did not receive ineffec-
tive assistance of counsel and that he was not prejudiced by
his exclusion from the in-chambers meeting was not contrary
to, or an unreasonable application of, clearly established fed-
eral law. Accordingly, we affirm the district court’s denial of
Petitioner’s habeas petition.

AFFIRMED.

FERGUSON, Circuit Judge, with whom REINHARDT,
Circuit Judge, joins, dissenting:

Prosecutors in the Ninth Circuit may now deliberately mis-
lead judges about matters that are of vital importance to our
judicial system. In affirming the denial of Campbell’s habeas
corpus petition, the majority ignores the factual record in this
case, the prosecutor’s and the defense counsel’s deceptive
maneuvering before trial, and Campbell’s Sixth Amendment
right to select counsel of his choice.

I.

On the first day of Campbell’s trial, the state trial judge met
in-chambers with Campbell’s retained counsel, Maureen
5456 CAMPBELL v. RICE
McCann (“McCann”), and the Santa Clara County Deputy
District Attorney Ralph Dixon (“Dixon”), who was prosecut-
ing Campbell. Campbell was neither present at the in-
chambers hearing nor was he informed of it.

The full extent of the in-chambers hearing went as follows:

THE COURT: Mr. Dixon has something he
wishes to put on the record with
respect to Ms. McCann.

MR. DIXON: Yes. Thank you, Your Honor. I
informed the Court that Ms.
McCann is currently facing
charges that is [sic] being prose-
cuted by my office . . . A criminal
defendant is entitled to legal repre-
sentation free from any conflict of
interest . . . I brought that to the
Court’s attention. I also stated that
the district attorney’s offer to
counsel in her pending case is nei-
ther more lenient nor more severe
than that any other defendant
would be offered if they were eli-
gible. In the case of counsel I
believe diversion was the offer.
Secondly, I’ve indicated for the
record that she has not nor will she
receive favorable treatment from
our office for any reason.

THE COURT: Do you wish to make any state-
ment at this time, Ms. McCann?

MS. MCCANN: No, that’s fine.

THE COURT: Very well.
 CAMPBELL v. RICE 5457
MR. DIXON: And the court has determined that
this is sufficient.

THE COURT: The Court has determined there is
no conflict of interest with respect
to Ms. McCann as against her
relationship with the district attor-
ney in this case of People v.
Campbell.

MR. DIXON: Thank you, Your Honor.

THE COURT: Thank you.

In the span of less than a few minutes, Dixon (1) excluded
Campbell from an in-chambers hearing that violated Camp-
bell’s constitutional rights, (2) deliberately withheld from the
trial judge material facts pertaining to McCann’s criminal his-
tory, and (3) colluded with McCann to deny Campbell the
opportunity to consider retaining other counsel of his choice.

The record reveals several crucial facts concerning
McCann’s criminal history that Dixon knew about yet deliber-
ately withheld from the trial judge during the in-chambers
hearing. McCann had been arrested for carrying a bag of
methamphetamine as she passed through a metal detector
facility at the San Martin Criminal Court of Justice in viola-
tion of California Health and Safety Code § 11377(a). Upon
being advised of her Miranda rights, she lied to the deputy
sheriffs by telling them that she had found the bag on the
floor. Her previous criminal record revealed that she had been
convicted of driving under the influence, that she was on pro-
bation, that she violated her probation, and that there was an
outstanding bench warrant in the amount of $15,000 against
her. Moreover, an assistant Attorney General had told the dis-
trict attorney’s office that McCann was ineligible for diver-
sion under California Penal Code § 1000(a)(4) because her
5458 CAMPBELL v. RICE
probation had been revoked;1 that is, Dixon had erroneously
offered McCann diversion.

Dixon had a duty to disclose to the trial judge during the
in-chambers hearing all the facts that he knew concerning
McCann.2 The Supreme Court has emphasized “the special
role played by the American prosecutor in the search for truth
in criminal trials.” Strickler v. Greene, 527 U.S. 263, 281
(1999). “A prosecutor has the responsibility of a minister of
justice and not simply that of an advocate. This responsibility
carries with it specific obligations to see that the defendant is
accorded procedural justice . . . .” ABA Model Rules of Pro-
fessional Conduct Rule 3.8 cmt. (2002); accord ABA Stan-
dards for Criminal Justice 3-1.1(b) (3d. 1993) (“The
prosecutor is both an administrator of justice and an advocate.
The prosecutor must exercise sound discretion in the perfor-
mance of his or her functions.”); id. at 3.1-1(c) (“The duty of
the prosecutor is to seek justice, not merely to convict”); see
also Hayes v. Brown, No. 99-99030, slip op. at 2764 (9th Cir.
Mar. 7, 2005) (“The prosecuting attorney[’s] . . . obligation is
to govern impartially[,] . . . to do justice[,] . . . [and] . . . to
1
On March 15, 1996, approximately three weeks after Campbell was
convicted, McCann’s preliminary hearing was held in Santa Clara County
Municipal Court. At the hearing, the deputy district attorney informed the
court that, although his office has originally offered McCann diversion, he
was revoking the offer because McCann was “not eligible for diversion.”
McCann’s counsel then explained that McCann had been on probation in
San Diego for another offense, and that her probation had been revoked
for “possibly failing to finish a drinking and driving program some six
years ago.”
2
From the transcript, it is of course evident that some off-the-record
conversation took place between Dixon, McCann, and the trial judge prior
to placing the matter on the record. But this conversation simply could not
have revealed all the facts concerning McCann’s criminal history and cur-
rent legal problems, which are central to the Fifth Amendment due process
violation and Sixth Amendment violation of right to counsel of choice at
issue in this case. To imply, as the majority does, that the trial judge some-
how knew the whole truth concerning McCann and her ineligibility for
diversion is to insult the state judge and state judiciary system.
 CAMPBELL v. RICE 5459
assure that the defendant has a fair and impartial trial”) (quot-
ing Commonwealth of The Northern Mariana Islands v.
Mendiola, 976 F.2d 475, 486 (9th Cir. 1992) (citations omit-
ted), overruled on other grounds by George v. Camacho, 119
F.3d 1393 (9th Cir. 1997) (en banc)).

A prosecutor, like all attorneys, also owes a duty of candor
toward a court. In particular, “[i]n an ex parte proceeding, a
lawyer shall inform the tribunal of all material facts known to
the lawyer which will enable the tribunal to make an informed
decision, whether or not the facts are adverse.” ABA Model
Rules of Professional Conduct Rule 3.3(a)(4)(d) (2002)
(emphasis added).

Dixon breached his duties as a prosecutor. He allowed the
trial judge to assess McCann’s responsibilities to her client
without the whole truth being before the court. McCann was
arraigned on the methamphetamine possession charge two
days before Campbell’s trial was scheduled to begin, so
Dixon clearly knew of the outstanding charges against
McCann. Dixon waited until the first day of trial, however, to
“put [something] on the record.” This was calculated and not
coincidental. He knew that a further delay in proceedings
would less likely be granted by the trial judge on the day of
the trial when all parties and witnesses were already present
in the courtroom.

Lady Justice may be blind, but she does not wear earplugs.
Every judge in the United States, if informed of the true and
complete facts, would have inquired into the outstanding
charges against McCann, probed Dixon further as to
McCann’s eligibility for diversion, and, more importantly,
called Campbell into the chambers to discuss his counsel’s
misconduct and to determine whether Campbell wished to be
represented by other counsel at his trial. Dixon’s and
McCann’s deceptive maneuvering prevented both the trial
judge from holding an honest and fair hearing and Campbell
5460 CAMPBELL v. RICE
from becoming informed about his counsel’s criminal history
and current legal problems.

II.

The majority does not deny that a due process violation
occurred when Campbell was excluded from the in-chambers
hearing, but contends that this violation was mere “trial error”
subject to harmless error review not rising to the level of
“structural error” as defined by the Supreme Court.3 The
majority fails to recognize that the actual and obvious effect
of the due process violation was to deliberately deprive
Campbell of his constitutional right to seek other counsel of
his choice — an error that is per se prejudicial, structural, and
which requires automatic reversal.

The Supreme Court has long recognized that the Sixth
Amendment protects a criminal defendant’s choice of counsel.4
3
In Kentucky v. Stincer, 482 U.S. 730, 745 (1987), the Supreme Court
held that “a defendant is guaranteed the right to be present at any stage of
the criminal proceeding that is critical to its outcome if his presence would
contribute to the fairness of the procedure.” If a defendant is denied his
constitutional right to be present during a critical stage of criminal pro-
ceedings, Supreme Court precedent requires us to evaluate the nature of
the error. Reversal is automatic if the defendant’s absence constitutes a
“structural error,” that is, an error that permeates “[t]he entire conduct of
the trial from beginning to end[,]” or “affect[s] the framework within
which the trial proceeds . . . .” Arizona v. Fulminante, 499 U.S. 279, 309-
10 (1991). Trial errors, on the other hand, are generally errors “[that]
occurred during the presentation of the case to the jury, and which may
therefore be quantitatively assessed in the context of other evidence pre-
sented . . . .” Id. at 307-08. Trial errors, unlike structural errors, are subject
to harmless error analysis.
4
All circuits recognize the constitutional right to select counsel of
choice. See United States v. Burton, 584 F.2d 485, 489 (D.C. Cir. 1978);
United States v. Neal, 36 F.3d 1190, 1205-06 (1st Cir. 1994); Lainfiesta
v. Artuz, 253 F.3d 151, 154 (2d Cir. 2001); United States v. Carey, 409
F.2d 1210, 1213-14 (3d Cir. 1969); United States v. Inman, 483 F.2d 738,
739-40 (4th Cir. 1973); Gandy v. Alabama, 569 F.2d 1318, 1320 (5th Cir.
 CAMPBELL v. RICE 5461
In Powell v. Alabama, 287 U.S. 45, 53 (1932), the Supreme
Court noted: “[I]t is hardly necessary to say that the right to
counsel being conceded, a defendant should be afforded a fair
opportunity to secure counsel of his own choice.” See also
Chandler v. Fretag, 348 U.S. 3, 10 (1954) (“[A] defendant
must be given a reasonable opportunity to employ and consult
with counsel; otherwise, the right to be heard by counsel
would be of little worth”); Glasser v. United States, 315 U.S.
60, 75 (1942) (“Glasser wished the benefit of the undivided
assistance of counsel of his own choice. We think that such
a desire on the part of an accused should be respected”).
Moreover, in Wheat v. United States, 486 U.S. 153, 159
(1988), the Supreme Court acknowledged that the Sixth
Amendment’s guarantee of assistance of counsel compre-
hends the right to select counsel of one’s choice.5 See also
Morris v. Slappy, 461 U.S. 1, 21-23 (1983) (Brennan, J., con-
curring) (discussing cases that protect a defendant’s right to
choose his own counsel).

The deprivation of the right to select counsel of one’s
choice is per se prejudicial. “Obtaining reversal for violation
of [the] right [to select counsel of one’s choice] does not
require a showing of prejudice to the defense, since the right
reflects constitutional protection of the defendant’s free
choice independent of concern for the objective fairness of the
proceeding.” Flanagan v. United States, 465 U.S. 259, 267-68

1978) (per curiam); Linton v. Perini, 656 F.2d 207, 209 (6th Cir. 1981);
United States v. Carrera, 259 F.3d 818, 824-25 (7th Cir. 2001); United
States v. Lewis, 759 F.2d 1316, 1326 (8th Cir. 1985); Releford v. United
States, 288 F.2d 298, 301 (9th Cir. 1961); United States v. Nichols, 841
F.2d 1485, 1501-02 (10th Cir. 1988); In re BellSouth Corp., 334 F.3d 941,
955-56 (11th Cir. 2003).
5
The right to choice of counsel applies only to persons who can afford
to retain counsel. See Caplin & Drysdale, Chartered v. United States, 491
U.S. 617, 624 (1989). The record clearly indicates that Campbell retained
McCann as counsel.
5462 CAMPBELL v. RICE
(1984).6 Moreover, Powell makes clear that a defendant has
a right to “a fair opportunity to secure counsel of his own
choice.” 287 U.S. at 53 (emphasis added).

Campbell was not just denied the fair opportunity to secure
other counsel of his choice by virtue of his exclusion from the
hearing, he was denied the fair opportunity to obtain the very
facts that would enable him to secure other counsel of his
choice. Excluded entirely from the in-chambers hearing,
Campbell did not know of either the pending criminal charges
6
The majority makes two errors in its rebuttal to our dissent in footnote
3. First, it erroneously believes that the sole harm that Campbell could
have suffered in this case was a Sixth Amendment violation based on a
conflict of interest, which requires a showing of adverse effect by
McCann’s performance. Under Flanagan, however, the deprivation of
one’s right to select counsel of choice is prejudicial per se. 465 U.S. at
267-68. Campbell was deprived of his right to select counsel of his choice
as a direct consequence of being excluded from the in-chambers hearing,
which is a Fifth Amendment due process violation separate and distinct
from a Sixth Amendment violation based on a conflict of interest. The
majority states that our analysis would apply “anytime a defendant’s attor-
ney had a conflict of interest.” Obviously, it misses the point. Our analysis
applies when the state violates the defendant’s constitutional rights by
depriving him of material information essential to the exercise of his Sixth
Amendment rights, as it did here by engaging in a willful due process vio-
lation. The majority appears to see no problem with the State interfering
with a defendant’s right to select counsel of his choice even though the
Supreme Court has made it clear that the client alone can exercise it. See
Faretta v. California, 422 U.S. 806, 834 (1975) (“It is the defendant . . .
who must be free . . . to decide whether in his particular case counsel is
to his advantage. Personal liberties are not rooted in the law of averages.
The right to defend is personal. The defendant, and not his lawyer or the
State, will bear the personal consequences of a conviction”).
Second, the majority misleadingly asserts: “McCann was an attorney
retained by [Campbell,] and [Campbell] made no request that she be
replaced or that another attorney be permitted to substitute for her.” Camp-
bell did not make such a request because neither Dixon nor McCann
revealed the complete facts concerning McCann’s criminal history and
current legal problems. How could Campbell have made a request to retain
substitute counsel without knowing such vital information about his cur-
rent counsel?
 CAMPBELL v. RICE 5463
against McCann or the fact that the same district attorney’s
office was prosecuting both him and McCann. If Campbell
had been present at the hearing and had been told what the
record stated about McCann’s criminal history, he would have
had the opportunity to consider choosing different counsel.7
The fact that the trial judge did not expressly deprive Camp-
bell of his right to secure counsel of his choice is of no conse-
quence since Campbell’s exclusion from the in-chambers
hearing effectively amounted to an unconstitutional depriva-
tion.8 In this case, the deprivation was particularly harmful
because, had Campbell been informed of the relevant facts,
he, like any reasonable defendant, would undoubtedly have
chosen a more stable and reliable counsel who would not hide
her criminal history and legal problems from him.

Paying heed to the Supreme Court’s recognition and pro-
tection of the constitutional right to select counsel of one’s
choice, this Circuit has consistently held that a deprivation of
this right is per se prejudicial. See Releford, 288 F.2d at 301;
United States v. Ray, 731 F.2d 1361, 1365 (9th Cir. 1984);
United States v. Washington, 797 F.2d 1461, 1465 (9th Cir.
1986); Bland v. Cal. Dep’t of Corrs., 20 F.3d 1469, 1478 (9th
Cir. 1994), overruled on other grounds, Schell v. Witez, 218
F.3d 1017, 1025 (9th Cir. 2000) (en banc); Schell, 218 F.3d
at 1026. Other circuits have also held that denial of the right
to select counsel of one’s choice may never be deemed harm-
less. See United States v. Panzardi Alvarez, 816 F.2d 813, 818
(1st Cir. 1987) (“The right to choose one’s counsel is an end
in itself; its deprivation cannot be [deemed] harmless”);
United States v. Voigt, 89 F.3d 1050, 1074 (3d Cir. 1996)
7
“An unwanted counsel ‘represents’ the defendant only through a tenu-
ous and unacceptable legal fiction. Unless the accused has acquiesced in
such representation, the defense presented is not the defense guaranteed
him by the Constitution, for, in a very real sense, it is not his defense.”
Faretta, 422 U.S. at 821.
8
Nor can it be said that Dixon or McCann were constitutionally permit-
ted to determine for Campbell whether to retain other counsel. See id., 422
U.S. at 834.
5464 CAMPBELL v. RICE
(“[A]rbitrary denials of the right to counsel of choice mandate
per se reversal”); Wilson v. Mintzes, 761 F.2d 275, 281 (6th
Cir. 1985) (“Evidence of unreasonable or arbitrary interfer-
ence with an accused’s right to counsel of his choice ordinar-
ily mandates reversal without a showing of prejudice”).

The California Court of Appeal’s decision denying Camp-
bell relief, therefore, was contrary to and an unreasonable
application of Supreme Court precedent as demonstrated by
Circuit law.9 See 28 U.S.C. § 2254(d)(1); Williams v. Taylor,
529 U.S. 362, 413 (O’Connor, J. concurring) (explaining that
the state court decision “was both contrary to and involved an
unreasonable application of this Court’s clearly established
precedent”).

III.

This case is astonishing. The prosecutor deliberately pre-
vented the trial judge from determining defense counsel’s true
criminal history and current legal problems. This in turn pre-
vented the trial judge from probing into whether the prosecu-
tor and defense counsel were being honest with the court. It
also prevented Campbell from obtaining basic information
that would have enabled him to make an informed decision
about whether to allow McCann to continue to represent him
at his trial or seek new, unbiased defense counsel. Excluded
9
Although a state court decision may not be overturned on habeas
review merely because the decision conflicts with decisions of any court
other than the United States Supreme Court, other authorities may be per-
suasive for purposes of determining whether a particular state court deci-
sion is “contrary to” Supreme Court law. Duhaime v. Ducharme, 200 F.3d
597, 600 (9th Cir. 2000); see also Ouber v. Guarino, 293 F.3d 19, 26 (1st
Cir. 2002) (references to lower court decisions “may be especially helpful
when the governing Supreme Court precedent articulates a broad principle
that applies to a wide variety of factual patterns”). Here, Circuit law dem-
onstrates the broad principle articulated by the Supreme Court in Flana-
gan concerning the per se prejudicial effect of the denial of the right to
select counsel of one’s choice.
 CAMPBELL v. RICE 5465
from the in-chambers hearing, Campbell was unconstitution-
ally deprived of due process and as a result unconstitutionally
denied his liberty and right to select other counsel of his
choice. The error was per se prejudicial and structural as
defined by the Supreme Court and four Circuits. Campbell’s
habeas petition should therefore be granted. Accordingly, I
respectfully dissent.