FILED
NOT FOR PUBLICATION MAR 29 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CHARLES JAMES KARNES, No. 12-35163
Petitioner - Appellant, D.C. No. 3:10-cv-00238-PK
v.
MEMORANDUM *
JEFF PREMO,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Oregon
Malcolm F. Marsh, Senior District Judge, Presiding
Argued and Submitted March 7, 2013
Portland, Oregon
Before: TASHIMA, CLIFTON, and BEA, Circuit Judges.
Charles James Karnes appeals the district court’s denial of his petition for a
writ of habeas corpus under 28 U.S.C. § 2254. The district court rejected Karnes’s
claims for relief, but granted a certificate of appealability as to (1) whether Karnes
is entitled to habeas relief on his claim of ineffective assistance of trial counsel,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
and (2) whether Karnes procedurally defaulted his claims that he was denied the
right to counsel of his choice and the due process right to be present at a status
conference where the trial court refused to delay his trial so that Karnes’s counsel
of choice could represent him. We have jurisdiction under 28 U.S.C. § 1291 and
§ 2253(a), and we affirm.
1. Karnes’s ineffective assistance of counsel claim is governed by
Strickland v. Washington, 466 U.S. 668 (1984). Under the Antiterrorism and
Effective Death Penalty Act of 1996, we cannot grant habeas relief for claims
adjudicated on the merits in state court unless the last reasoned state court decision
“was contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States” or “was
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). The Oregon state
post-conviction relief court’s rejection of Karnes’s ineffective assistance of counsel
claim was not unreasonable because Karnes failed to show that he was prejudiced
by the alleged errors of his trial counsel. Even if his trial counsel had moved for a
continuance and requested that Karnes be present at the status conference, there is
not a reasonable probability that the trial court would have agreed to postpone the
trial. See Strickland, 466 U.S. at 694. The trial court understood that Karnes’s
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counsel of choice would represent him only if a continuance was granted, but the
trial court nonetheless refused to postpone the trial and further stated that he did
not think that hearing from Karnes would impact his decision.
2. A writ of habeas corpus shall not be granted unless “the applicant has
exhausted the remedies available in the courts of the State.” 28 U.S.C.
§ 2254(b)(1)(A).
Karnes did not raise his claim arising from the Sixth Amendment right to
counsel of choice to the Oregon Court of Appeals on direct appeal. A habeas
petitioner must fairly present his federal claims “in each appropriate state court” in
order to satisfy AEDPA’s exhaustion requirement, Baldwin v. Reese, 541 U.S. 27,
29 (2004), so this claim is procedurally defaulted.
A habeas petitioner who has procedurally defaulted his claim may obtain
federal habeas review only if he demonstrates cause and prejudice for the default
or a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722,
750 (1991). Karnes has failed to do so, so his procedurally defaulted claim is
barred from federal review.
Even if this claim of trial error were not procedurally defaulted, Karnes
would not be entitled to habeas relief. Karnes’s claim arising from the Sixth
Amendment right to counsel of one’s choice fails on the merits. The trial court’s
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refusal to postpone the trial was within the court’s “wide latitude” in balancing the
right to counsel of choice against the needs of fairness and scheduling. See United
States v. Gonzalez-Lopez, 548 U.S. 140, 152 (2006). It is undisputed that private
counsel Ahmed would not agree to represent Karnes unless a continuance of the
trial were granted, a continuance the trial court clearly stated it would not
countenance.
As for his Fourteenth Amendment claim, even if the trial court violated
Karnes’s due process rights by failing to require his presence at the status
conference, Karnes cannot establish that he was prejudiced by his absence. See
Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).
AFFIRMED.
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