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MARY ELLEN SAMUELS, Petitioner-Appellant,
v.
JANEL ESPINOZA, Warden, Respondent-Appellee.
United States Court of Appeals, Ninth Circuit
December 6, 2021
NOT FOR PUBLICATION
Argued and Submitted November 18, 2021 Pasadena, California
Appeal from the United States District Court for the Central District of California No. 2:10-cv-03225-SJO S. James Otero, District Judge, Presiding
Before: WARDLAW and HURWITZ, Circuit Judges, and BOUGH, [**] District Judge.
MEMORANDUM [*]
Mary Ellen Samuels, a California state prisoner, appeals the district court's judgment denying guilt-phase relief on her 28 U.S.C. § 2254 habeas corpus
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petition.[1] We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. Reviewing de novo under the standard set forth in the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Demetrulias v. Davis, 14 F.4th 898, 905 (9th Cir. 2021), we affirm.
The sole issue certified by the district court for appeal was its rejection of Claim 5, which asserted ineffective assistance of counsel ("IAC") by James Robelen, the attorney who represented Samuels at her preliminary hearing, whom Samuels claimed had a conflict of interest. The California Supreme Court could reasonably have determined that Robelen's representation of James Bernstein and Samuels was successive rather than concurrent because Bernstein died before Samuels's right to counsel attached. See Wood v. Georgia, 450 U.S. 261, 271 (1981) (right to conflict-free counsel applies where a constitutional right to counsel exists); United States v. Olson, 988 F.3d 1158, 1160 (9th Cir. 2021) (per curiam) (the right to counsel attaches when a defendant is charged). We therefore do not presume prejudice. See Cuyler v. Sullivan, 446 U.S. 335, 348, 349-50 (1980) (prejudice is presumed only if petitioner demonstrates that counsel "actively represented conflicting interests" and that "an actual conflict of interest adversely affected [her] lawyer's performance"); Noguera v. Davis, 5 F.4th 1020, 1036 (9th Cir. 2021)
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("[T]here is no clearly established Supreme Court precedent applying Sullivan's presumed-prejudice standard to successive representation.").
Samuels cannot show actual prejudice from Robelen's failure to disclose Bernstein's alleged confession at the preliminary hearing because she cannot show a reasonable probability that, absent this failure, the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687 (1984) (a claim of ineffective assistance of counsel requires a showing of both ineffective assistance and prejudice); Noguera, 5 F.4th at 1039 (quoting Strickland, 466 U.S. at 694) ("To establish prejudice, a petitioner 'must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'"). As "the showing required at a preliminary hearing is exceedingly low," Salazar...
