FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEVE HOUSTON, 

No. 10-15048 Petitioner-Appellant,

D.C. No.

v.  2:04-cv-00785-

JAMES SCHOMIG; NEVADA ATTORNEY RLH-GWF

GENERAL,

OPINION Respondents-Appellees. 

Appeal from the United States District Court

for the District of Nevada

Roger L. Hunt, Chief District Judge, Presiding

Submitted February 14, 2011*

San Francisco, California

Filed March 8, 2011

Before: Diarmuid F. O’Scannlain and Stephen S. Trott,

Circuit Judges, and Tena Campbell, District Judge.**

Opinion by Judge Trott

*The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2). 

**The Honorable Tena Campbell, Senior United States District Judge

for the District of Utah, sitting by designation. 

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COUNSEL

Ryan Norwood, Assistant Federal Public Defender, Las

Vegas, Nevada, for the petitioner-appellant.

Dennis C. Wilson, Senior Deputy Attorney General, Las

Vegas, Nevada, for the respondents-appellees.

OPINION

TROTT, Circuit Judge:

Petitioner Houston’s timely appeal arises from the result of

an evidentiary hearing ordered by us on remand in Houston

HOUSTON v. SCHOMIG 3273
v. Schomig, 533 F.3d 1076 (9th Cir. 2008). The purpose of the

evidentiary hearing was “to determine whether a conflict of

interest adversely affected [Houston’s] counsel’s performance

and, if so, whether there is a reasonable probability that the

result of the trial would have been different in the absence of

that effect.” Id. at 1083. The possible conflict issue arose

because Houston’s lawyer in his trial on charges of conspiracy to commit murder, etc., Craig Jorgenson, was part of the

same Public Defender’s Office that represented a key witness

against Houston — Terrance Chadwick — in a previous case.

Jorgenson himself had nothing to do with Chadwick’s representation by another lawyer in his office.

On remand, the district court determined that Houston “was

not adversely effected [sic] by the prior representation.” We

review de novo the district court’s denial of a habeas petition

raising an ineffective assistance of counsel claim. See Howard

v. Clark, 608 F.3d 563, 567 (9th Cir. 2010). We review for

clear error the district court’s factual findings. See id. Because

the district court’s findings and conclusions are well supported by the record and the law, we affirm.

DISCUSSION

[1] Houston’s lawyer, Craig Jorgenson, never personally

represented the witness, Chadwick, against his client Houston.

Thus, in this context, the Sixth Amendment’s right to conflictfree counsel was violated only if Jorgenson’s office’s prior

representation of Chadwick “adversely affect[ed] [his] performance.” Alberni v. McDaniel, 458 F.3d 860, 870 (9th Cir.

2006). This is so because “ ‘an actual conflict of interest

means precisely a conflict that affected counsel’s performance

— as opposed to a mere theoretical division of loyalties.’ ” Id.

(quoting Mickens v. Taylor, 535 U.S. 162, 171 (2002)

(emphasis and alterations omitted)).

Houston’s attorney relies on various circumstances in his

attempt to show that Jorgenson’s performance adversely

affected Houston.

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First and foremost, Jorgenson made a failed motion prior to

trial to withdraw from the case, filed on the ostensible ground

that he felt conflicted by his office’s prior representation of

Chadwick. In arguing this motion, Jorgenson said at the time

that “his heart was going to be with Mr. Chadwick,” whom

he would have to cross-examine in his client’s defense.

[2] When this motion and statement were carefully

explored on remand, however, Jorgenson’s statement about

his “heart” takes on a meaning which supports the district

court’s conclusion:

(By Houston’s Attorney) 

Q. Okay. Do you recall telling Judge Mosley that

— when the conflict was being discussed that

your heart would be with Mr. Chadwick? Do

you remember that statement?

A. Yes.

Q. What did you mean by that?

A. I meant that since we had represented Mr.

Chadwick in his preceding trial that he — we

owed a loyalty to him and that it could very

well look to Mr. Houston that I would not give

him a hundred percent because Mr. Chadwick

was our — was our prior client too so, he’d

have to wonder who I actually — who we actually cared most about, or how could we actually

be vigorous in defending him when that

required us trying to make Mr. Chadwick look

bad when he had been our prior client.

. . .

(By Counsel for the Warden)

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Q. All right. On December 12th, the following day,

the judge had a hearing on your motion to withdraw as counsel because the Public Defender’s

Office had previously represented Mr. Chadwick?

A. Right.

Q. Did you argue to the Court during that hearing

that this previous representation by your office

was a conflict of interest?

A. Yes.

Q. And what were you trying to accomplish

through this motion or this hearing?

A. To get what Mr. Houston wanted and that was

his — the private attorney that he had hired to

represent him.

Q. So you wanted — basically it was, as you said

previously in your earlier testimony, you were

trying again to persuade Judge Mosley to let the

new attorney in and to let you out and continue

the case?

A. Right.

Q. So that was your main goal?

A. Yeah.

Q. Okay. Did you actually feel conflicted by your

office’s prior representation of Mr. Chadwick?

A. No.

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Q. All right. How would you characterize this conflict where your office, two years ago, different

attorneys, had previously represented Mr. Chadwick?

A. Ask the question again.

Q. Okay. How would you characterize the conflict

that you perceived?

A. Oh, technical.

Q. So it was a technical conflict. You weren’t, as

you previously testified, conflicted by the fact

that — of this previous representation?

A. Not me personally. I didn’t feel conflicted, no.

[3] Jorgenson also explained that “[i]f my office had represented a guy in the past and he is now a complaining witness,

I get off the case, end of story.” He added that he did not alter

his representation of Houston in any way because the Public

Defender’s Office had previously represented Chadwick.

Under questioning by the trial judge, Chadwick waived his

attorney-client privilege, leaving Jorgenson free to attack him

on cross as he saw fit.

The second circumstance offered by Houston’s attorney in

support of his case is that Jorgenson “failed to cross-examine

Chadwick about the circumstances of his prior conviction.”

[4] Jorgenson testified, however, that the alleged conflict

did not cause him to limit his use of the prior conviction in

impeaching Chadwick. Moreover, Jorgenson began his crossexamination, according to his testimony, with an alternative

line of questioning that was intended to show the jury “that

Mr. Chadwick had a compelling reason to get even with Mr.

Houston and therefore he was very biased against him and

HOUSTON v. SCHOMIG 3277
would say anything to get him in trouble.” Jorgenson thus

demonstrated that his ability to impeach Chadwick was not

impaired by any feeling of loyalty toward him.

[5] Third, Jorgenson did not elicit from Chadwick his

parole status. However, this alleged failure did not arise from

any sense of obligation to Chadwick but from trial court rulings or possibly just oversight.

Finally, Chadwick had flunked a polygraph in the earlier

case. Jorgenson found out about this possible credibility factor by reading his office’s file about that case. He made no

attempt to introduce this factor in Houston’s trial. Houston’s

attorney now says this was a material failure caused by the

conflict.

[6] Jorgenson said he felt “uncomfortable” after reading

the polygraph file, but he also explained that the polygraph

failure was not admissible in any event. He suggested that

because of having read the file he “didn’t spend any time trying to come up with something extremely imaginative about

the failed polygraph test,” but also that there was no way he

could ever “get it in.” The district court agreed with Jorgenson that the polygraph results were not admissible without a

joint stipulation. He noted that the prosecutor would not have

consented. Thus, no adverse effect can be attached to this

alleged failure.

[7] Finally, Houston attempts to claim that Jorgenson’s

“failures” amounted to actionable incompetence under Strickland v. Washington, 466 U.S. 668 (1984). This claim may be

beyond the scope of the remand, but in any event, Houston

has not demonstrated any prejudice from the omissions of

which he complains.

AFFIRMED.

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