Clifford CHEW, Petitioner-Appellant, v. Guy HALL, Warden, TRCI, Respondent-Appellee, 412 F. App'x 8

MEMORANDUM Chew claims that the trial court violated his Sixth Amendment rights when it appointed Earl Woods to advise his brother Rodney before Rodney testified. However, Chew did not object to the court’s decision at trial, and he did not fairly present his claim of trial court error on direct appeal to the Oregon Court of Appeals or the Oregon Supreme Court. He failed to reference federal law or the United States Constitution in his Balfour brief, and he cited no cases in support of his claim that would have alerted those courts to the federal nature of his claim. See Fields v.

Waddington, 401 F.3d 1018, 1021 (9th Cir.2005). Oregon law therefore barred Chew from bringing this claim of trial court error in state post-conviction review proceedings. See Palmer v. State, 318 Or. 352, 867 P.2d 1368, 1373 (1994). Because Chew was procedurally barred from raising the issue in state post-conviction review, his federal claim is likewise procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 728-29, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Chew has not demonstrated cause for the default or actual prejudice as a result of the alleged violation of federal law. Id. at 750, 111 S.Ct. 2546.

Nor has Chew shown that “failure to consider the claims would result in a fundamental miscarriage of justice.” Id. Insofar as Chew claims that Woods violated his Sixth Amendment right to conflict-free counsel by advising Rodney, Chew fails to state a viable Sixth Amendment claim. Mickens v. Taylor, 535 U.S. 162, 174, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002). Woods did not represent Chew at trial, and had not represented Chew for the six weeks before trial. Therefore, Chew cannot possibly show that an “actual conflict of interest adversely affected his lawyer’s performance.” Cuyler v.

Sullivan, 446 U.S. 335, 349, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) (emphasis added). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.