The Sixth Amendment right to effective assistance of counsel includes the right to be represented by counsel whose loyalties are undivided.[237]  “[T]he Sixth Amendment also guarantees each criminal defendant the right to assistance of counsel ‘unhindered by a conflict of interests.’”[238]  This guarantee is so important that, unlike other Sixth Amendment claims, when a defendant alleges an unconstitutional actual conflict of interest, “prejudice must be presumed,” and harmless error analysis does not apply.[239]  On the other hand, the defendant must show the conflict actively influenced the representation in order to obtain a reversal.[240]

 

            The court must allow the defendant to be present at a hearing concerning defense counsel’s conflict of interest, or else the denial of counsel at this critical stage will be considered reversible per se.[241]

[237] United States v. Partin, 601 F.2d 1000, 1006 (9th Cir. 1979).

[238] United States v. Wheat, 813 F.2d 1399, 1402 (9th Cir. 1987), citing Cuyler v. Sullivan, 446 U.S. 335, 355 (1980) (Marshall, J., concurring in part and dissenting in part), quoting Holloway v. Arkansas, 435 U.S. 475, 483, n.5, 98 S.Ct. 1173, 1178, n.5 (1978)).

[239] Lockhart v. Terhune, 243 F.3d 1130 (9th Cir. 2001) (citing Delgado v. Lewis, 223 F.3d 976, 981 (9th Cir. 2000), citing Cuyler v. Sullivan, 446 U.S. 335, 350 (1980), and Flanagan v. United States, 465 U.S. 259, 268 (1984)); United States v. Allen, 831 F.2d 1487, 1494-95 (9th Cir. 1987).

[240] Mickens v. Taylor, 535 U.S. 162 (March 27, 2002) (where defendant’s counsel represented victim in prior case, and did not notify defendant of potential conflict, defendant must show adverse affect of conflict on counsel’s performance to demonstrate Sixth Amendment violation); United States v. Rodrigues, 347 F.3d 818 (9th Cir. October 27, 2003) (no showing of actual conflict of interest; fact that retained attorney worked for firm where former U.S. Attorney who had been involved in early stages of the investigation of petitioner also worked, since former prosecutor was “screened off” from case, and petitioner knew of the connection and did nothing at the time); United States v. Shwayder, 312 F.3d 1109 (9th Cir. December 5, 2002) (defendant must show that actual conflict of interest of counsel adversely affected representation in order to establish ineffective assistance claim).

[241] Campbell v. Rice, 302 F.3d 892 (9th Cir. September 4, 2002) (habeas petitioner’s due process rights were violated by excluding him from the in-chambers hearing on defense counsel’s potential conflict of interest, and such violation was a structural error which was prejudicial per se).

Ninth Circuit

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " CONFLICT OF INTEREST " HARMLESS ERROR
Houston v. Schomig, ___ F.3d ___, 2011 WL 782011 (9th Cir. Mar. 8, 2011) (affirming district court order denying habeas petition raising an ineffective assistance of counsel claim, since defendant was not adversely impacted by the conflict of interest of his trial counsel).

POST CON - GROUNDS - INEFFECTIVE ASSISTANCE - CONFLICT OF INTEREST
Young v. Runnels, ___ F.3d ___ (9th Cir. Jan. 23, 2006) (habeas denial affirmed over ineffective assistance of counsel claim and a conflict of interest claim).
http://caselaw.lp.findlaw.com/data2/circs/9th/0316859p.pdf