FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICKY L. FOOTE, No. 06-15094
Petitioner-Appellant, D.C. No.
v.
CV-02-00288-RCJ/
RAM
FRANKIE SUE DEL PAPA; E.K.
MCDANIEL, AMENDED
Respondents-Appellees.
OPINION
Appeal from the United States District Court
for the District of Nevada
Robert C. Jones, Presiding
Argued and Submitted
November 17, 2006—San Francisco, California
Filed July 3, 2007
Before: J. Clifford Wallace and Sidney R. Thomas,
Circuit Judges, and David A. Ezra,* District Judge.
Opinion by Judge Wallace
*The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
7939
FOOTE v. DEL PAPA 7941
COUNSEL
Paul G. Turner, Assistant Federal Public Defender, Las
Vegas, Nevada, for the petitioner-appellant.
David K. Neidert, Senior Deputy Attorney General, Criminal
Justice Division, Reno, Nevada, for the respondents-
appellees.
OPINION
WALLACE, Circuit Judge:
Foote appeals from the district court’s judgment denying
his 28 U.S.C. § 2254 habeas corpus petition. We have juris-
diction to review the district court’s judgment under 28
U.S.C. § 2253(a). See Olvera v. Giurbino, 371 F.3d 569, 572
(9th Cir. 2004). We review the judgment de novo, Nunes v.
Mueller, 350 F.3d 1045, 1051 (9th Cir. 2003), and we affirm.1
1
We affirm the district court’s denial of Foote’s remaining claims in a
simultaneously-filed memorandum disposition.
7942 FOOTE v. DEL PAPA
I.
A. The Trial Testimony & Direct Appeal
In the early morning of February 1, 1987, Foote and a man
who Foote later identified as his father (or father-in-law)
entered the Mint Hotel in Las Vegas, Nevada. Jane Doe,
Keith Taylor, and Foote’s wife, Vicky, were seated together
at a bar in the hotel. Foote and his father argued with Doe,
Taylor, and Vicky. A security guard removed Foote and his
father from the premises. Approximately 5:30 a.m., Vicky,
Doe, and Taylor went to the Footes’ apartment. Vicky and
Doe went inside while Taylor remained outside in his car.
Doe testified at trial that she was drunk when she arrived
at the apartment, where she and Vicky planned to gather some
of Vicky’s clothes. Doe also testified that they planned to lie
to Foote, telling him that Vicky would spend the night at
Doe’s residence when in fact Taylor and Vicky planned to
spend the rest of the night together. According to Doe, an
argument erupted between the Footes. Brandishing a knife,
Foote forced Doe to perform fellatio and had vaginal inter-
course with her. Doe stated that after falling asleep for a time,
she was able to leave the apartment with Vicky.
After the State rested its case, the trial judge asked, out of
the presence of the jury, whether Foote had chosen not to tes-
tify in his own defense, and Foote responded, “Yes.” The
defense rested without calling any witnesses. In March 1988,
following the trial, the court entered a judgment of conviction
against Foote for battery with intent to commit a crime, sexual
assault, and sexual assault with a deadly weapon. The Nevada
Supreme Court dismissed Foote’s direct appeal in January
1989.
B. The Alleged Conflict of Interest
Chamberlain, a Deputy Public Defender in the Clark
County Public Defenders Office (Public Defenders Office),
FOOTE v. DEL PAPA 7943
represented Foote at his May 1987 arraignment in this case.
The following month, Foote filed a complaint in United States
District Court for the District of Nevada naming Chamberlain
and the Public Defenders Office as defendants. Foote alleged
that Chamberlain “refused to ask [him] pertinent Questions”;
that she “approached [him] . . . with a plea Bargain, even
though [he] demanded [his] right to trial”; that “all efforts to
contact Ms. Chamberlain to prepare his defense [were]
futile”; that “Chamberlain refused to supply [him] with all
copies of records concerning [his] arrest”; and that she
thereby failed to afford him “all of [his] rights as guarante[ed
by] the Constitution of the United States.”
In July 1987, the Public Defenders Office filed a motion to
withdraw as Foote’s counsel, asserting that the lawsuit “cre-
ate[d] a clear conflict of interest” and that Chamberlain could
not “adequately represent the interests of [the] defendant.”
Apparently, the motion was granted and Foote’s retained
counsel, Cherry, replaced Chamberlain. In December 1987,
the federal district court dismissed Foote’s action against
Chamberlain and the Public Defenders Office.
At the close of sentencing, Cherry and the judge engaged
in the following dialogue:
MR. CHERRY: Your Honor, may we have this on
calendar next week so he can have
a public defender file a notice of
appeal in this matter. He is indi-
gent and as he said, he is on dis-
ability and he does want to appeal
this and I think he should.
THE COURT: There isn’t any problem so the
public defender could represent
him on appeal.
MR. CHERRY: I don’t think there is a conflict. I
think they represented him at one
7944 FOOTE v. DEL PAPA
time, but I want to make sure it’s
on calendar so a notice is filed.
THE COURT: All right.
The trial court subsequently ordered the re-appointment of the
Public Defenders Office to represent Foote in his direct
appeal.
In a habeas corpus petition filed in state court in 1990
(1990 State Petition), Foote pressed a claim of ineffective
assistance of appellate counsel based on the Public Defender’s
alleged conflict of interest. Foote stated that he had written
“to the public defenders office and requested that they with-
draw from [his] appeal and that they request that the court
appoint new independent counsel,” but that he “never did
receive a response to this letter” and thus “thought that there
was nothing further he could do.” Foote also alleged that
appellate counsel failed to provide him with copies of briefs,
police reports, and the Nevada Supreme Court’s order dis-
missing his direct appeal. Finally, Foote alleged that appellate
counsel failed to raise meritorious appellate issues. The
Nevada Supreme Court rejected Foote’s “conflict of interest”
claim, characterizing the alleged conflict as merely a “poten-
tial” conflict, not an actual one.
II.
Foote asserts a Sixth Amendment right to be represented by
conflict-free appointed appellate counsel. We apply the stan-
dards of the Antiterrorism and Effective Death Penalty Act
(AEDPA) to the Nevada Supreme Court’s reasoned decision
denying the 1990 State Petition. See Taylor v. Lewis, 460 F.3d
1093, 1097 n.4 (9th Cir. 2006). Under AEDPA, we will grant
habeas relief if the state court decision was “contrary to, or
involved an unreasonable application of, clearly established
Federal law as determined by the Supreme Court.” 28 U.S.C.
§ 2254(d)(1); see Williams v. Taylor, 529 U.S. 362, 405-409
FOOTE v. DEL PAPA 7945
(2000). This last phrase “refers to the holdings . . . of [the
Supreme] Court’s decisions as of the time of the relevant
state-court decision.” Williams, 529 U.S. at 412.
[1] AEDPA requires that Foote’s “conflict of interest”
claim not implicate an “open question” in the Court’s juris-
prudence. See Carey v. Musladin, 127 S.Ct. 649, 653 (2006).
While we have recognized that an “irreconcilable conflict”
between a criminal defendant and his trial counsel may entitle
a defendant to new counsel, see United States v. Moore, 159
F.3d 1154, 1158 (9th Cir. 1998), no Supreme Court case has
held that an “irreconcilable conflict” between the defendant
and his appointed appellate counsel violates the Sixth Amend-
ment. Nor has the Supreme Court held that a defendant states
a Sixth Amendment claim by alleging that appointed appellate
counsel had a conflict of interest due to the defendant’s dis-
missed lawsuit against the public defenders office and
appointed pre-trial counsel. Foote’s “conflict of interest”
claim thus fails.
Cuyler v. Sullivan does not save Foote’s claim. Sullivan
established that under the Sixth Amendment we will “forgo
individual inquiry into whether counsel’s inadequate perfor-
mance undermined the reliability of the verdict in instances
where assistance of counsel has been denied entirely or during
a critical stage of the proceeding.” 446 U.S. 335, 348, 350
(1980). We have described this principal as the “Sullivan
exception” to the rule that a habeas petitioner must show prej-
udice in connection with his ineffective assistance of counsel
claim. See Earp v. Ornoski, 431 F.3d 1158, 1183 (9th Cir.
2005); see also Mickens v. Taylor, 535 U.S. 162, 166 (2002)
(recognizing Sullivan exception). The Sullivan exception
applies where the petitioner shows: (1) that his counsel
actively represented conflicting interests; and (2) that this
adversely affected his counsel’s performance. See id. at 1182,
citing Sullivan, 446 U.S. at 348. “To show an actual conflict
resulting in an adverse effect, [the petitioner] must demon-
strate that some plausible alternative defense strategy or tactic
7946 FOOTE v. DEL PAPA
might have been pursued but was not and that the alternative
defense was inherently in conflict with or not undertaken due
to the attorney’s other loyalties or interests.” Hovey v. Ayers,
458 F.3d 892, 908 (9th Cir. 2006) (quotations omitted).
The Supreme Court has never held that the Sullivan excep-
tion applies either to a defendant’s “irreconcilable conflict”
with his appointed appellate counsel or to such counsel’s con-
flict of interest. Indeed, Mickens “explicitly concluded that
Sullivan was limited to joint representation, and that any
extension of Sullivan outside of the joint representation at trial
context remained, ‘as far as the jurisprudence of [the Supreme
Court was] concerned, an open question.’ ” Earp, 431 F.3d at
1184, quoting Mickens, 535 U.S. at 176.
Foote’s reliance on Anders v. California, which involved
appointed counsel who failed to file a brief on behalf of his
client on appeal, also does not help him. 386 U.S. 738 (1967).
Counsel wrote to the court that he was “of the opinion that
there is no merit to the appeal.” Id. at 742. The Supreme
Court held that this denied the defendant the right to
appointed counsel guaranteed by Gideon v. Wainwright, 372
U.S. 335 (1963), because “[t]he constitutional requirement of
substantial equality and fair process can only be attained
where counsel acts in the role of an active advocate in behalf
of his client, as opposed to that of an amicus curiae.” 386 U.S.
at 744. By contrast, Foote’s counsel raised claims in the direct
appeal.
Entsminger v. Iowa is similarly inapposite. 386 U.S. 748
(1967). There, the Court held that petitioner’s appointed coun-
sel had not “function[ed] in the active role of an advocate”
because he failed to file the papers necessary to perfect a ple-
nary appeal. Id. at 751. Counsel apparently did this because
he believed petitioner’s appeal lacked merit. Entsminger
relied on Anders, which was issued the same day.
Finally, the holding of United States v. Cronic does not
apply here. 466 U.S. 648 (1984). Chronic involved the
FOOTE v. DEL PAPA 7947
appointment of an inexperienced lawyer shortly before trial.
The Tenth Circuit held that the defendant had received inef-
fective assistance of counsel solely based on the disparity
between the government’s and defense counsel’s experience
and time to prepare for trial. Id. at 650. The Supreme Court
reversed, holding that the test for effectiveness is the lawyer’s
actual performance, not extrinsic factors such as time to pre-
pare or degree of experience. Id. at 663-66.
[2] Neither Sullivan, Anders, Entsminger, nor Cronic stand
for the proposition that a criminal defendant states a Sixth
Amendment claim by alleging either an “irreconcilable con-
flict” with his appointed appellate counsel or that such coun-
sel had a conflict of interest based on the petitioner’s
dismissed lawsuit against the public defender’s office and
appointed pre-trial counsel. Therefore, the Nevada Supreme
Court’s rejection of the conflict of interest claim was neither
contrary to, nor an unreasonable application of, established
federal law as determined by the Supreme Court of the United
States. See 28 U.S.C. § 2254(d)(1).
AFFIRMED.