Anthony Alexander CAMPBELL, Petitioner-Appellant, v. Bert RICE, Respondent-Appellee, 408 F.3d 1166

CLIFTON, Circuit Judge: Petitioner Anthony Alexander Campbell appeals the denial by the district court of his petition for habeas corpus under 28 U.S.C. § 2254. Petitioner challenges his California state court burglary conviction on two grounds. He argues that his trial counsel provided ineffective assistance because of a conflict of interest: she was being prosecuted at the same time by the same district attorney’s office.

In addition, he maintains that the trial court violated his due process rights by excluding him from an in-chambers meeting attended by the trial judge, the prosecutor, and his defense attorney, during which the court was informed of the prosecution of the defense attorney and concluded that the attorney did not have a conflict of interest. When presented with these arguments, the California state courts denied relief to Petitioner.

Applying the deferential standard of review established under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), we affirm the district court’s denial of the habeas petition. I. BACKGROUND On May 26, 1995, the police arrested Petitioner while he was attempting to burglarize a home. After he consented to a search of his vehicle, the police recovered jewelry and other personal property. A later search of Petitioner’s home resulted in the discovery of 239 items that had been reported stolen by individuals whose homes had been burglarized.

Based on this evidence, the Santa Clara County District Attorney’s Office charged Petitioner with multiple counts of first-degree burglary and several counts of attempted burglary. Petitioner retained attorney Maureen McCann to represent him, and McCann appeared on his behalf at the December 4, 1995, preliminary hearing. A month later, on January 9, 1996, McCann was herself arrested for attempting to transport methamphetamine into the San Martin Criminal Court Justice Facility. .The Santa Clara County District Attorney’s Office charged her with one count, of felony drug possession.

On February 6, 1996, McCann was arraigned. Petitioner’s trial commenced two days later. On tbe first day of trial, the court held a private in-chambers conference with McCann and the deputy district attorney who was prosecuting Petitioner. Petitioner was not notified of this meeting and did not attend. During this conference, the deputy district attorney informed the court that his office was prosecuting McCann on unspecified charges. The deputy district attorney represented to. the court that his office would not give McCann favorable treatment under any circumstances. McCann declined to comment.

The trial court then concluded that McCann’s simultaneous prosecution by the district attorney’s office did not present a conflict of interest concerning her continued representation of Petitioner. The trial proceeded, and the jury found Petitioner guilty of eighteen counts of first-degree burglary and one count of attempted first-degree burglary. The trial court sentenced him to serve an aggregate term of fourteen years in prison. Petitioner filed a direct appeal and a state habeas petition with the California Court of Appeal.

That court affirmed his conviction and denied his habeas petition on December 15, 1997. Petitioner then sought review from the California Supreme Court, which denied review of both matters on April 1,1998. Petitioner filed a habeas petition under 28 U.S.C. § 2254 in federal district court on August 25, 1998. The district court denied this petition, and Petitioner filed a timely notice of appeal. The certificate of appéalability (COA) granted by a two-judge panel of this court only encompasses the question of whether Petitioner received effective assistance of counsel.

We expand the COA to consider the question of whether Petitioner’s right to due process was violated. II. DISCUSSION We review de novo the district court’s decision to deny Petitioner’s habeas petition. Bean v. Calderon, 163 F.3d 1073, 1077 (9th Cir.1998). Because the petition was filed after April 24, 1996, the effective date of AEDPA the provisions of that statute apply. Rios v. Rocha, 299 F.3d 796, 799 n. 4 (9th Cir.2002).

Under AEDPA, a habeas petition cannot be granted unless the state court decision was: (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”; or (2) “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)(l)-(2). AEDPA’s “clearly established law” requirement limits the area of law on which a habeas court may rely to those constitutional principles enunciated in Supreme' Court decisions. See Williams v.

Taylor, 529 U.S. 362, 381-82, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Only Supreme Court precedents are binding on state courts under AEDPA, but our precedents may be pertinent to the extent that they illuminate the meaning and application of Supreme Court precedents. Casey v. Moore, 386 F.3d 896, 907 (9th Cir.2004). When applying these standards, we review the “last reasoned decision” by a state court. See Avila v. Galaza, 297 F.3d 911, 918 (9th Cir.2002). A.

Ineffective Assistance of Counsel We first consider whether the state court’s determination that the alleged conflict of interest did not cause Petitioner’s attorney to render ineffective assistance was contrary to, or an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d). The Sixth Amendment right to counsel includes the “correlative right to representation that is free from conflicts of interest.” Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981).

Upon notification that an actual or potential conflict of interest exists, a trial court has the obligation “either to appoint separate counsel or to take adequate steps to ascertain whether the risk was too remote to warrant separate counsel.” Holloway v. Arkansas, 435 U.S. 475, 484, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978); see also Wood, 450.U.S. at 272 & n. 18, 101 S.Ct. 1097. If the trial court fails to undertake either of these duties, the defendant’s Sixth Amendment rights are violated. See Holloway, 435 U.S. at 484, 98 S.Ct. 1173.

Even if a defendant’s Sixth Amendment rights have been violated in this manner, though, the. defendant cannot obtain relief unless he can demonstrate that his attorney’s performance was “adversely affected” by the conflict of interest. Mickens v. Taylor, 535 U.S. 162, 174, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002). In its treatment of Petitioner’s case, the California Court of Appeal assumed that an actual conflict of interest existed and reviewed what had occurred to determine whether Petitioner’s representation was adversely affected.

The approach adopted by the court of appeal, which led to its rejection of Petitioner’s ineffective assistance of counsel argument, was not contrary to clearly established federal law. Nor was the state court’s decision an unreasonable application of federal law to the facts of the case. As noted, the state court of appeal assumed there had been a conflict of interest and denied relief because it concluded that the representation of Petitioner had -not been adversely affected. Petitioner raises two arguments to demonstrate that his attorney’s performance was adversely affected.

First, Petitioner maintains that his attorney improperly waived a hearing on the admissibility of the DNA evidence because, as of the date of the trial, the California appellate courts had not stated in a published opinion that the method of DNA testing used, known as PCR, was admissible. The record indicates, however, that at trial, the prosecution requested that the court take judicial notice of the numerous times that PCR blood tests had been previously deemed admissible in the Santa Clara County Superior Court.

Furthermore, after Petitioner’s trial, the California appellate courts concluded that PCR blood testing is generally accepted as a reliable technique by the relevant scientific community. See People v. Morganti, 43 Cal.App.4th 643, 50 Cal.Rptr.2d 837, 855 (1996). Thus, as the state court of appeal determined, the record provides no basis to conclude that a challenge to the admissibility of the DNA evidence would have been successful. .See Lowry v.

Lewis, 21 F.3d 344, 346 (9th Cir.1994) (concluding that an attorney’s failure to file a motion was not ineffective assistance of counsel and noting that the attorney’s decision not to file the motion was “vindicated by the results in related cases” where the motions were made, but they failed). Second, Petitioner argues that McCann provided ineffective assistance by failing to present evidence of other burglaries which occurred in the area but as to which Petitioner had not been charged.

In concluding that this claim did not demonstrate that Petitioner’s representation was adversely affected, the state court correctly recognized that the fact that other crimes had occurred in the area did not exonerate Petitioner. In addition, McCann’s decision not to present this evidence was reasonable because the jury could have inferred from this information that Petitioner had committed other crimes in addition to the ones that were charged.

Thus, it was not an 'unreasonable application of federal law for the state court to conclude that Petitioner .had not established that he was adversely affected by the alleged conflict of interest from which his attorney suffered. B.

Due Process Next, we consider Petitioner’s claim that his due process rights were violated because he was excluded from the in-chambers conference where the trial court concluded that his attorney did not have a conflict of interest, A defendant has a right to be present at any critical stage of his criminal proceedings if his presence would contribute to the fairness of the procedure. Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987); United States v.

Gagnon, 470 U.S. 522, 527, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985) (per curiam) (concluding that the defendants’ absence did not violate the-Due Process Clause where their presence was not needed to “ensure fundamental fairness” and they could not have added to or gained from being present at the conference). We need not decide whether it was error to exclude Petitioner from the conference in question here, though, because even if the exclusion was error, it does not require reversal.

The Supreme Court has “adopted the general rule that a constitutional error does not automatically require reversal of a conviction ... and has recognized that most constitutional errors can be harmless.” Arizona v. Fulminante, 499 U.S. 279, 306, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). Automatic reversal due to a constitutional error is required only if this error was a “structural defect” that permeated “[t]he entire conduct of the trial from the beginning to end” or “affected] the framework within which the trial proceeds.” Id. at 309-10, 111 S.Ct. 1246.

If the error was simply a “trial error,” on the other hand, a court conducts a harmless-error review. A trial error “occur[s] during the presentation of the case to the jury, and ... - may therefore be quantitatively assessed in the context of other evidence presented in. order to determine whether its admission was harmless beyond a reasonable doubt.” Id. at 307-08, 111 S.Ct. 1246. The list of structural errors that the Supreme Court has recognized is short and limited. These structural errors -include: “total deprivation of the right to counsel at trial,” see Gideon v.

Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); “a judge who was not impartial,” see Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927); “unlawful exclusion of members of the defendant’s race from a grand jury,” see Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986); “the right to self-representation at trial,” see McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984); and “the right to[a] public trial,” see Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). Fulminante, 499 U.S. at 309-10, 111 S.Ct. 1246.

Since Fulminante,, the Court has also recognized that “[d]enial of the right to a jury verdict of guilt beyond a reasonable doubt,” is structural error. See Sullivan v. Louisiana, 508 U.S. 275, 281, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). The Supreme Court has never held that the exclusion of a defendant from a critical stage of his criminal proceedings constitutes a structural error. To the contrary, in Rushen v.

Spain, 464 U.S. 114, 117, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983) (per curiam),- the Court determined that the fact that the defendant was denied the right to be present during an ex parte communication between the judge and a juror was a trial error that was subject to harmless error analysis.

The court explained that the right to be present during all critical stages of the proceedings and the right to be represented by counsel, “as with most constitutional rights, are subject to harmless error analysis unless the deprivation, by its very nature, cannot be harmless.” Id. at 117 n. 2, 104 S.Ct. 453 (citations omitted). The Court’s decision in Rushen supports our conclusion that any error resulting' from Petitioner’s exclusion from the in-chambers meeting was not a structural error but was, instead, trial error subject to harmless error review.

As already discussed, Petitioner has not demonstrated that he was adversely affected by his attorney’s alleged conflict of interest. He does not allege any other adverse effect from his exclusion from the in-chambers conference, beyond the claims already discussed. The determination of the California Court of Appeal that any error was harmless — that is, that Petitioner’s representation was not adversely affected and that he was not denied a-fair and impartial trial — was not an unreasonable application of federal law as applied to the facts of this case. See Mitchell v.

Esparza, 540 U.S. 12, 16, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003) (per curiam) (explaining that a state court is not required to cite or demonstrate an awareness of Supreme Court cases as long as its reasoning and result do not contradict them). III. CONCLUSION For the foregoing reasons, we conclude that the state court’s determination that Petitioner did not receive ineffective assistance of counsel and that he was not prejudiced by his exclusion from the in-chambers meeting was not contrary to, or an unreasonable application of, clearly established federal law.

Accordingly, we affirm the district court’s denial of Petitioner’s habeas petition. AFFIRMED. . The dissent speculates that the deputy district attorney "deliberately withheld from the trial judge material facts pertaining to McCann’s criminal history, and ... colluded with McCann to deny [Petitioner] the opportunity to consider retaining other counsel of his choice.” Post at 1174. Contrary to the dissent’s assertions, the record provides no evidence that the deputy district attorney deliberately withheld information or colluded with Petitioner's attorney.

Indeed, it is not clear from the record that any information was in fact withheld from the trial judge. The transcript from the in-chambers hearing, quoted in the dissenting opinion, post at 1174, on its face does not include all that was actually said. Rather, it is evident that there was an off-the-record discussion among the attorneys and the trial judge before the result of the discussion was put on the record, a common practice. The transcript begins with a comment by the judge that the prosecutor had something to put on the record, and the statements that followed provide what appears to be a brief

summary in conclusory terms of something that was already discussed. ’ It is simply impossible to tell from the transcript precisely what disclosure was made to the trial judge, what inquiries the judge might have made, if any, or what responses were provided to any inquiries. There is nothing in the transcript which demonstrates collusion between the two attorneys. We cannot assume more than the transcript tells us, of course, and our decision is not premised on any finding that there was, in fact, more detailed disclosure to the trial judge.

Regardless, the statements in the dissenting opinion are not supported by the record, and Petitioner himself has not made such accusations. . In Mickens, the Supreme Court made clear that Holloway's mandate of automatic reversal applied only to situations where a defense counsel had objected to the multiple representation of co-defendants and the'trial court did not conduct an inquiry concerning this potential conflict. Mickens, 535 U.S. at 168, 122 S.Ct. 1237. .

The dissent advances the argument that because Petitioner was excluded from the in-chambers meeting and was thus unaware of his attorney’s potential conflict of interest, he was deprived "of his constitutional right to seek other counsel of his choice — an error that is per se prejudicial, structural, and which requires automatic reversal.” Post at 5460. Cloaking the error in terms of the Sixth Amendment right to counsel, however, does not automatically identify a structural error requiring automatic reversal.

As noted above, the Supreme Court explicitly held in Mickens, 535 U.S. at 174, 122 S.Ct. 1237, that even if a defendant's Sixth Amendment rights were violated due to his attorney’s conflict of interest, the defendant is not entitled to relief unless he can demonstrate that his attorney’s performance was "adversely affected” by the conflict of interest. See Belmontes v.

Woodford, 350 F.3d 861, 883 n. 4, 885 (9th Cir.2003) ("To establish a Sixth Amendment violation based on conflict of interest, the defendant must show that an actual conflict of interest adversely affected his lawyer's performance.”) It is apparent that Petitioner was not denied the right to seek counsel of his choice: McCann was an attorney retained by him, and he made no request that she be replaced or that another attorney be permitted to substitute for her. This case is simply not like the cases cited by the dissent to support its assertion of per se prejudice.

That Petitioner was not fully informed of McCann’s potential conflict of interest does not mean that he was denied the right to choose a lawyer. The characterization which the dissent seeks to attach here could be offered any time a defendant's attorney had an undisclosed conflict of interest. When a conflict of interest is not fully disclosed, it is inherent that the defendant might have elected to change counsel if he had known of the conflict. Yet Mickens and Belmontes clearly require that to obtain relief a defendant must demonstrate an adverse-impact. Petitioner has failed to satisfy that requirement.