FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DARRIS YOUNG, 

No. 03-16859 Petitioner-Appellant,

D.C. No.

v.  CV-01-01427-SBA

DAVID L. RUNNELS, Warden, OPINION Respondent-Appellee. 

Appeal from the United States District Court

for the Northern District of California

Saundra B. Armstrong, District Judge, Presiding

Argued and Submitted

April 11, 2005—San Francisco, California

Filed January 23, 2006

Before: Warren J. Ferguson, John T. Noonan, and

Pamela Ann Rymer, Circuit Judges.

Opinion by Judge Ferguson;

Concurrence by Judge Noonan

865
COUNSEL

A.J. Kutchins, Berkeley, California, for the petitionerappellant. 

Gregg E. Zywicke, Deputy Attorney General for the State of

California, San Francisco, California, for the respondentappellee. 

OPINION

FERGUSON, Circuit Judge: 

Petitioner-Appellant Darris Young, a California state prisoner, appeals the District Court’s denial of his 28 U.S.C.

§ 2254 habeas petition challenging his conviction for armed

robbery and felony evasion. Young contends that his trial

attorney’s disciplinary problems rendered her presumptively

unable to provide effective assistance, thereby warranting a

per se reversal of his conviction under United States v.

Cronic, 466 U.S. 648 (1984). Young further contends that his

trial attorney’s baseless lawsuit against various public officials, including the Alameda County District Attorney (DA),

for allegedly participating in a pedophile ring created an

actual conflict of interest under Cuyler v. Sullivan, 446 U.S.

335 (1980). We uphold the state court’s resolution of Young’s

ineffective assistance claim since Strickland v. Washington,

466 U.S. 668 (1984), rather than Cronic, governs this claim,

and Young fails to show prejudice under Strickland. Further,

we find that Young has waived his conflict of interest claim

by not raising it before the District Court. See Belgarde v.

Montana, 123 F.3d 1210, 1216 (9th Cir. 1997). Accordingly,

we affirm the District Court’s denial of Young’s habeas petition.

868 YOUNG v. RUNNELS
I. BACKGROUND

A. Pre-Trial and Trial Proceedings

On July 8, 1995, Young was apprehended after a highspeed car chase and charged with armed robbery and felony

evasion. Young, positively identified by two witnesses,

waived his Miranda rights and confessed to robbing a

Safeway store. Young’s two prior robbery convictions were

submitted as “strikes” against him under California’s Three

Strikes law, which imposes a minimum sentence of twentyfive years to life on defendants previously convicted of two

or more “serious” or “violent” felonies. Cal. Penal Code

§§ 667(e)(2)(A), 1170.12(c)(2)(A). Prior to trial, the Alameda

County DA’s office offered Young a determinate prison term

of sixteen years for pleading guilty. Young rejected this offer,

as well as a second offer for a term of twelve years, four

months. Later, he regretted his decision and had his courtappointed public defender request a determinate sentence,

which the DA’s office declined to extend. 

On March 18, 1997, Young’s family retained Kathryn JoAnne Dixon as his counsel. Unbeknownst to Young or his

family, State Bar disciplinary charges alleging forty-four

counts of misconduct were pending against Dixon at the time

she was hired. Dixon was also engaged in a baseless lawsuit

accusing numerous public officials, including the Alameda

County DA, of being members of a pedophile ring that kidnapped local schoolchildren. As Young’s counsel, Dixon

moved to suppress the field lineup conducted after the robbery as unduly suggestive, as well as a prejudicial statement

Young had made in violation of his Miranda rights. She

argued unsuccessfully to exclude the use of Young’s prior

convictions for impeachment, but did secure a bifurcated trial

on the truth of those convictions. Dixon also twice requested

of Deputy DA Matt Golde a determinate sentence, which

Golde refused to extend. At the close of the prosecution’s evidence, Young offered to plead guilty, but withdrew the offer

YOUNG v. RUNNELS 869
when Dixon advised him that it might not affect the length of

his sentence. On June 16, 1997, the jury convicted Young of

armed robbery and felony evasion and, in a separate proceeding, found his prior convictions to be true. 

On July 9, 1997, before Young’s sentencing had begun, the

California State Bar Court recommended Dixon’s disbarment.

The Bar Court found that Dixon took fees from and then

stopped communicating with six clients; made false statements to the probate court, to an administrative tribunal, and

to a superior court; engaged in acts of moral turpitude, dishonesty, or corruption; and threatened or made false accusations against four attorneys, a former client, a former

paralegal, the State Bar’s trial counsel, and the Bar Court

itself. Dixon was eventually disbarred on March 15, 1999. 

B. Sentencing and Appeals

Because Dixon became an inactive member of the bar on

July 16, 1997, the trial court reappointed a public defender to

represent Young during sentencing. The court first imposed a

concurrent twenty-five years to life three-strikes sentence for

Young’s two offenses, with a determinate term of eleven

years for enhancements. Later, pursuant to its discretion under

Cal. Penal Code § 1385(a), the trial court struck one of

Young’s prior convictions and imposed a determinate sentence of twenty years. Young simultaneously filed a direct

appeal and state habeas petition alleging that Dixon suffered

from a conflict of interest, that she failed to pursue plea negotiations, and that the State Bar proceedings rendered her presumptively incapable of providing effective assistance. The

California Court of Appeal, unswayed by Young’s arguments,

denied relief on December 27, 1999, and the California

Supreme Court denied Young’s petition for review on April

12, 2000. Young timely filed a federal habeas petition in

which he argued that Dixon’s failure to disclose her pending

disciplinary charges amounted to an actual conflict of interest,

and that the State Bar’s finding that Dixon was unfit to prac870 YOUNG v. RUNNELS
tice law established per se ineffective assistance under

Cronic. The District Court denied the petition on August 30,

2002, and this appeal timely followed. 

II. STANDARD OF REVIEW

We review de novo the District Court’s denial of Young’s

§ 2254 habeas petition. Robinson v. Ignacio, 360 F.3d 1044,

1055 (9th Cir. 2004). We may grant habeas relief to a person

in state custody if the 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.” 28 U.S.C. § 2254(d)(1). The state court’s findings of fact are presumed to be correct unless the petitioner

can rebut this presumption by clear and convincing evidence.

See 28 U.S.C. § 2254(e)(1). 

A state court decision is contrary to Supreme Court precedent if it “applies a rule that contradicts the governing law set

forth in [the Supreme Court’s] cases” or “confronts a set of

facts that are materially indistinguishable from a decision of

th[e] Court and nevertheless arrives at a result different from

[the Court’s] precedent.” Williams v. Taylor, 529 U.S. 362,

405-06 (2000). A state court decision involves an unreasonable application of Supreme Court precedent if it “identifies

the correct governing legal principle from th[e] Court’s decisions but unreasonably applies that principle to the facts of the

prisoner’s case.” Id. at 413. In applying the foregoing standards, we review the “last reasoned decision” by the state

court, Robinson, 360 F.3d at 1055, which in this case is the

California Court of Appeal’s denial of Young’s state habeas

petition. 

III. DISCUSSION

A. Ineffective Assistance of Counsel

Young contends that he is entitled to § 2254 relief because

the California Court of Appeal applied the wrong legal stanYOUNG v. RUNNELS 871
dard to analyze his claim that Dixon’s pending disciplinary

proceedings rendered her assistance constitutionally deficient.

We disagree and uphold the state court’s resolution of

Young’s ineffective assistance claim under Strickland, rather

than Cronic, as neither contrary to nor an unreasonable application of clearly established Supreme Court precedent. 

[1] To prevail on a Sixth Amendment ineffective assistance

claim, a defendant must show that counsel’s representation

“fell below an objective standard of reasonableness,” Strickland, 466 U.S. at 688, and that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different,” id. at 694. See

also Bell v. Cone, 535 U.S. 685, 695 (2002) (explaining that

“[w]ithout proof of both deficient performance and prejudice

to the defense, . . . it could not be said that the sentence or

conviction ‘resulted from a breakdown in the adversary process that rendered the result of the proceeding unreliable’ ”

(quoting Strickland, 466 U.S. at 687)). 

[2] In Cronic, the Supreme Court carved out certain exceptions to the general Strickland rule, holding that in limited situations the defendant need not show prejudice, as required

under Strickland. See Cronic, 466 U.S. at 658. Specifically,

prejudice may be presumed when the defendant is “denied

counsel at a critical stage of his trial,” id. at 659, “counsel

entirely fails to subject the prosecution’s case to meaningful

adversarial testing,” id., or “the likelihood that any lawyer,

even a fully competent one, could provide effective assistance

is so small that a presumption of prejudice is appropriate

without inquiry into the actual conduct of the trial,” id. at 659-

60. But apart from circumstances of this magnitude, “there is

generally no basis for finding a Sixth Amendment violation

unless the accused can show how specific errors of counsel

undermined the reliability of the finding of guilt.” Id. at 659

n.26. 

Young contends that Cronic governs his ineffective assistance claim because representation by an attorney whom the

872 YOUNG v. RUNNELS
State Bar has found to be unfit, and who is eventually disbarred, constitutes a constructive denial of counsel. Though

Dixon was not disciplined until after Young’s trial had concluded, the grounds for that discipline stemmed from events

that occurred prior to Dixon’s involvement in Young’s case.

Therefore, Young argues, the State Bar Court’s subsequent

finding of unfitness rendered Dixon’s earlier assistance to

Young per se ineffective. 

[3] Young’s argument that Cronic rather than Strickland

governs his ineffective assistance claim has already been

rejected by this Court. See United States v. Mouzin, 785 F.2d

682, 696-98 (9th Cir. 1986). As we suggested in Mouzin, a

lawyer can be disciplined for a variety of reasons — merely

because he is subject to disciplinary proceedings while representing a client does not mean that he is presumptively incapable of providing effective assistance. Cf. id. at 698.

Moreover, the situation here is positively distinguished from

Mouzin to the extent that Dixon remained in good standing

throughout her representation of Young, whereas the attorney

in Mouzin was disciplined mid-trial, but continued to represent the defendant. Even in those circumstances, this Court

held that Strickland, not Cronic, governed, for an attorney’s

suspension or disbarment does not invite “a per se rule that

continued representation in an ongoing trial is constitutionally

ineffective.” Id. Rather, we found it reasonable to treat such

cases under the general rule requiring a showing of specific

errors and prejudice, for if the discipline rendered is indicative

of counsel’s substandard abilities, then that deficiency should

be manifested in counsel’s courtroom behavior and trial conduct. Accordingly, we agree with the District Court that the

state court’s decision to apply Strickland and not Cronic to

the present case was not contrary to clearly established federal

law under § 2254(d)(1). 

We turn next to whether the state court’s resolution of

Young’s ineffective assistance claim on the merits, under Strickland, involved an unreasonable application of clearly

YOUNG v. RUNNELS 873
established Supreme Court precedent. We examine the prejudice prong of the Strickland test first. See Strickland, 466 U.S.

at 697 (noting that courts may consider either prong of the test

first, and need not address both prongs if the defendant fails

under one). To “affirmatively prove prejudice,” a defendant

must demonstrate a reasonable probability that, but for counsel’s alleged errors, the results in his case would have been

different. Id. at 694; see also Williams, 529 U.S. at 391-93. In

assessing the probability of a different outcome, a court must

consider the “totality of the evidence before the judge or

jury.” Strickland, 466 U.S. at 695. 

[4] Young argues that, but for Dixon, the outcome in his

case would have been different because he would have pled

guilty and thus received a lesser sentence than the twenty

years he ultimately obtained. Given the facts of this case,

Young fails to meet his burden of establishing a reasonable

probability that he would have received a more lenient sentence by pleading guilty. Before hiring Dixon, Young had

already rejected two plea offers from the DA, one for a determinate term of sixteen years, and another for a term of twelve

years, four months. Subsequently, both Young’s first attorney,

the public defender, and Dixon tried to negotiate determinate

sentences from the DA’s office, but were rebuffed. As Deputy

DA Golde explained to the trial court, the DA had reviewed

Young’s case and had declined to extend anything less than

twenty-five years to life. By the time Dixon entered the case,

the only available disposition from the DA’s point of view

was an indeterminate three-strikes term of at least twenty-five

years to life. We therefore find that Young fails to meet his

burden of showing prejudice and his ineffective assistance

claim based on Dixon’s pending disciplinary proceedings

fails. 

B. Conflict of Interest

[5] Young also contends that Dixon’s baseless lawsuit

against the Alameda County DA for participating in a

874 YOUNG v. RUNNELS
pedophile ring created an actual conflict of interest under

Cuyler, 446 U.S. 335. Assuming arguendo that the Certificate

of Appealability encompasses this claim, Young has waived

it by failing to raise it before the District Court. See Belgarde

v. Montana, 123 F.3d 1210, 1216 (9th Cir. 1997) (noting that

“[h]abeas claims that are not raised in the petition before the

district court are not cognizable on appeal” (internal quotation

marks omitted)). Whereas Young argued to the District Court

a conflict of interest theory based on Dixon’s failure to disclose her pending disciplinary proceedings, he now argues to

this Court a different claim based on Dixon’s suit against the

Alameda County DA. 

[6] Nor does Young’s failure to raise this alternative conflict of interest claim fall under any exception to the waiver

rule. See, e.g., Taniguchi v. Schultz, 303 F.3d 950, 959 (9th

Cir. 2002) (outlining three exceptions to the waiver rule).

First, there are no “exceptional circumstances as to why the

issue was not raised at the trial court.” Id. Like the petitioner

in Taniguchi, Young raised his alternative conflict of interest

claim in his state habeas petition and so could have raised it

in his federal habeas petition. Nor was there any change in

law excusing Young’s failure to raise this claim earlier.

Finally, Young’s new claim is not a purely legal question easily resolvable without a factual record, where the “opposing

party would suffer no prejudice as a result of the failure to

raise the issue in the trial court.” Id. As such, we find that

Young’s conflict of interest claim based on Dixon’s suit

against the Alameda County DA is not cognizable on appeal.

IV. CONCLUSION

For the foregoing reasons, we uphold the District Court’s

denial of Young’s § 2254 habeas petition. 

AFFIRMED.

YOUNG v. RUNNELS 875
NOONAN, Circuit Judge, concurring: 

In proceedings brought by the State Bar of California that

began in August 1995, and concluded in June 1997, a state

bar judge made these findings about the lawyer who in June

1997 represented Young in his state trial for armed robbery:

1. The lawyer had falsely charged opposing counsel in a

civil suit with being a “champion of the Emeryville

pedophile ring,” an enterprise which the lawyer described

as “operated by organized crime.”

2. The lawyer spoke to another opposing counsel representing a government agency, “yelling and talking about a

child pornography ring” and told her, “You need to be

careful — you better remember what happened to

Damien Gaines.” The reference was to a murdered analyst for that counsel’s agency.

3. The lawyer called her own former paralegal “a thief and

a liar” and said that she would “get [her]” or “kill [her].”

The lawyer kept calling the paralegal until the latter

unplugged her phone.

4. The lawyer falsely accused a former client of terrorism

and of stalking her. She accused both him and his new

counsel of being “supremacist militia members.”

5. During the proceedings before the state bar court, the

lawyer “repeatedly screamed at the Court, refused to follow rulings and directions, and made direct threats toward

the Court and Trial Counsel . . . . [Her conduct] “caused

the Court the gravest concern that [she] is not capable of

conducting herself properly in any court of law.” (emphasis in original).

6. The state bar judge added: 

876 YOUNG v. RUNNELS
“While the Court appreciates the difficulty of representing

oneself, it does not justify an attorney’s abandoning the most

basic elements of appropriate courtroom behavior and engaging in disruptive and offensive conduct. Again, [she] seems to

have no insight that such actions are inappropriate and must

be curtailed.”

7. The state bar judge concluded: 

“Respondent’s complete lack of insight into the wrongfulness of her actions is reprehensible. In vigorously defending

her position, Respondent demonstrates that she does not fully

appreciate the distinctions between right and wrong. Her

erratic outbursts and lack of discernment during court proceedings constitute a danger to the public and to the legal profession.” 

Despite these findings, the lawyer — as the state court of

appeals remarked in Young’s case — remained “a fully

licensed member of the bar” until she was formally disbarred

on July 9, 1997. 

Subsequent to these proceedings, the disbarred lawyer

spoke about this case to Young’s new counsel, a public

defender, who filed this declaration in this case: 

“The reference to the ‘pedophile ring’ is nothing new to

persons familiar with [the lawyer’s] conspiracy theories. For

the past couple of years, she has been known to make accusations that various officials, including the Alameda County

District Attorney, have conspired to protect a ‘pedophile ring’

operating in Emeryville. In the one phone conversation I was

able to have with [her] after being assigned to represent the

defendant in this case, she declared that the State Bar proceedings were engineered by Tom Orloff because she had

exposed his role in the ‘Emeryville pedophile ring’ and that

‘Orloff sent his pansy Dave Hollister to testify against me’.”

YOUNG v. RUNNELS 877
It is conceded by all that if Darris Young had been represented by a college student or a cobbler or counsel not admitted to the California bar he would have been denied his Sixth

Amendment right to counsel. But his case is different because

he was represented by a fully licensed member of the California bar whom the courts of California took nearly two years

to remove from a position where she could harm the public,

the courts, and her clients! A fully licensed lawyer with her

head full of fantasies and “with complete lack of insight into

the wrongfulness of her actions” was counsel enough to satisfy the Sixth Amendment! As Judge Ferguson’s opinion indicates, precedent apparently requires this bizarre conclusion.

Only the Supreme Court of the United States can eliminate

this cruel parody of the right to counsel. 

878 YOUNG v. RUNNELS