FILED
NOT FOR PUBLICATION JUN 07 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RICHARD ANTHONY BREWER, No. 10-16980
Petitioner - Appellant, D.C. No. 2:06-cv-00382-GEB-
GGH
v.
D. L. RUNNELS, Warden; ATTORNEY MEMORANDUM *
GENERAL OF THE STATE OF
CALIFORNIA,
Respondents - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding
Argued and Submitted February 14, 2012
San Francisco, California
Before: TASHIMA and SILVERMAN, Circuit Judges, and GARBIS, Senior
District Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Marvin J. Garbis, Senior District Judge for the U.S.
District Court for Maryland, sitting by designation.
1
Richard Anthony Brewer (“Brewer”) appeals the district court’s denial of his
28 U.S.C. § 2254 petition. Reviewing de novo, see Crittenden v. Ayers, 624 F.3d
943, 950 (9th Cir. 2010), we affirm.
Brewer claims that his rights to due process and the effective assistance of
counsel were violated when the state trial court excluded him from an in camera
hearing regarding a potential conflict with his trial counsel and did not inform him
of the essential facts disclosed in the hearing. Although Brewer waived the
potential conflict before the state trial court, he now contends that the waiver was
invalid because he was not fully informed.
The California Court of Appeal affirmed Brewer’s convictions and rejected
Brewer’s claims of denial of effective assistance of counsel and due process. The
state appellate court held that the trial court’s inquiries into the potential conflict
and waiver were adequate, and that Brewer received effective assistance of counsel
at all times.
The federal magistrate judge, considering Brewer’s § 2254 petition prior to
the decision in Cullen v. Pinholster, 563 U.S. ___, 131 S. Ct. 1388 (2011), held an
evidentiary hearing to determine whether Brewer had been contemporaneously
aware of the essential facts that had been discussed in camera. Based upon that
hearing, the magistrate judge found that Brewer had sufficient knowledge at the
2
time of the in camera hearing such that he knowingly waived the potential conflict,
and therefore, the waiver was valid. The magistrate found no cognizable prejudice,
and he recommended that the district court deny Brewer’s § 2254 petition. The
district court adopted the magistrate judge’s findings and recommendations and
denied the § 2254 petition.
The Supreme Court stated in Cullen v. Pinholster, 131 S. Ct. at 1398, that
“review under 28 U.S.C. § 2254(d)(1) is limited to the record that was before the
state court that adjudicated the claim on the merits.” Thus, the magistrate judge
erroneously had conducted an evidentiary hearing. That error, however, was
harmless because we can, and shall, review the district court’s ultimate
determination, as directed by the Supreme Court, on the record that was before the
state court.
As amended by the Antiterrorism and Effective Death Penalty Act of 1996,
§ 2254 limits a federal court’s power to grant habeas relief to a state prisoner.
Under § 2254(d)(1), a federal court shall not grant relief with respect to “any claim
that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim . . . 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.” “Clearly established Federal law” under
3
§ 2254(d)(1) “refers to the holdings, as opposed to the dicta, of [the] Court’s
decisions as of the time of the relevant state-court decision.” Williams v. Taylor,
529 U.S. 362, 365 (2000). “[A] habeas court must determine what arguments or
theories supported or, as here, could have supported, the state court’s decision; and
then it must ask whether it is possible fairminded jurists could disagree that those
arguments or theories are inconsistent with the holding in a prior decision of this
Court.” Harrington v. Richter, 562 U.S. ___, ___, 131 S. Ct. 770, 787 (2011).
Reviewing the record that was before the California Court of Appeal, see
Pinholster, 131 S.Ct. at 1398, we hold that the state appellate court did not reach a
decision that was contrary to, or involved an unreasonable application of, clearly
established federal law as determined by the Supreme Court. The state appellate
court’s conclusion that Brewer had made a valid informed waiver of a potential
conflict of counsel and that, even if the waiver were unintelligent, or invalid, there
was no adverse effect on the outcome of Brewer’s trial, comports with controlling
Supreme Court precedents. See Mickens v. Taylor, 535 U.S. 162, 166 (2002);
Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); Kentucky v. Stincer, 482 U.S.
730, 745 (1987); Wood v. Georgia, 450 U.S. 261, 271 (1981); Holloway v.
Arkansas, 435 U.S. 475, 481 (1978); Johnson v. Zerbst, 304 U.S. 458, 464-65
(1938).
4
Accordingly, we affirm the district court’s denial of Brewer’s § 2254
petition.
AFFIRMED.
5