FILED
NOT FOR PUBLICATION FEB 29 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PATRICK BAYLIS, No. 09-16715
Petitioner - Appellant, D.C. No. 3:07-cv-05791-CRB
v.
MEMORANDUM*
MATTHEW CATE,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Submitted February 15, 2012**
San Francisco, California
Before: THOMAS, FISHER and IKUTA, Circuit Judges.
Patrick Baylis appeals the district court’s denial of his 28 U.S.C. § 2254
habeas petition based on an alleged violation of his Sixth Amendment right to
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
counsel of his choosing. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253,
and we affirm.
1. We assume without deciding that Baylis exhausted his claims and that
his arguments are not waived. See 28 U.S.C. § 2254(b)(2).
2. The state court’s decision to deny Baylis’ motion for substitution of
counsel was neither contrary to nor involved an unreasonable application of clearly
established federal law. See 28 U.S.C. § 2254(d)(1). Baylis’ chosen counsel had
previously represented Baylis’ brother and the state court could reasonably
determine that Baylis’ defense strategy was likely to be that the brother committed
the offenses for which Baylis was on trial. Under these circumstances, the state
courts reasonably applied Supreme Court precedent in denying Baylis’ request to
substitute counsel. See Wheat v. United States, 486 U.S. 153, 164 (1988) (the
presumption that a criminal defendant may have counsel of his choice “may be
overcome not only by a demonstration of actual conflict but by a showing of a
serious potential for conflict”). The state court’s finding of a conflict of interest
also was not an unreasonable determination of the facts. See 28 U.S.C. §
2254(d)(2).
3. The state court’s determination that the brother’s waiver “reflect[ed]
no awareness of the nature and seriousness of the conflict involved” and was
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therefore inadequate constituted a reasonable application of Supreme Court
precedent. See Wheat, 486 U.S. at 163 (holding that district courts “must be
allowed substantial latitude in refusing conflicts of interest not only in those rare
cases where an actual conflict may be demonstrated before trial, but in the more
common cases where a potential for conflict exists which may or may not burgeon
into an actual conflict as the trial progresses”).
AFFIRMED.
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