Opinion · Court of Appeals for the Ninth Circuit

Andre Marcus Bragg v. Warden Galaza

253 F.3d 1150

Type: Opinion
Court: Court of Appeals for the Ninth Circuit
Jurisdiction: Federal
Date: 2001-06-12
Topic: bankruptcy

How later courts describe this case

concluding that to show an actual conflict a petitioner must show that counsel actively represented conflicting interests
explaining that petitioner’s mere speculation 11 that a witness might have given helpful information is not enough to establish ineffective 12 assistance
evidentiary hearing precluded by AEDPA because petitioner failed to diligently pursue his claims in state court
“Without a showing of prejudice, a ‘theoretical’ or 23 ‘potential’ conflict is insufficient to constitute actual conflict; instead, [counsel] must have 24 actively represented conflicting interests.”

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Cited by: 75 opinions

BRAGG v. GALAZA,253 F.3d 1150(9th Cir. 2001)

Andre Marcus BRAGG, Petitioner-Appellant, v. Warden GALAZA,

Respondent-Appellee.

No. 99-16636.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 7, 2000

Filed March 12, 2001.

Amended June 12, 2001.

Quin Denvir, Federal Defender; Daniel J. Broderick, Chief Assistant Federal Defender; Carolyn M. Wiggin, Staff Attorney; Allison Claire, Assistant Federal Defender, Sacramento, California, for the petitioner-appellant.

Bill Lockyer, Attorney General of the State of California; David P. Druliner, Chief Assistant Attorney General; Robert R. Anderson, Senior Assistant Attorney General; Arnold O. Overoye, Senior Assistant Attorney General; Mathew Chan,Page 1151Deputy Attorney General, Sacramento, California, for the respondent-appellee.

Appeal from the United States District Court for the Eastern District of California; Lawrence K. Karlton, District Judge, Presiding. D.C. No. CV-97-00741-LKK

ORDER AMENDING OPINION AND DENYING PETITION FOR REHEARING AND AMENDED OPINION

Before: O'SCANNLAIN, LEAVY, and GOULD, Circuit Judges.

ORDER

This court's opinion, filed March 12, 2001, is amended as follows:

1. On page 3110 of the slip, the first sentence of the second full paragraph reads:

Here, while Bragg appealed his conviction in the state court alleging that facts on the record established ineffective assistance of counsel, he never moved for an evidentiary hearing to resolve any factual ambiguities.

The foregoing sentence should be replaced with the following sentence:

Here, while Bragg appealed his conviction in the state court alleging that facts on the record established ineffective assistance of counsel, he never moved for an evidentiary hearing in the trial court to resolve any factual ambiguities.

2. On page 3111 of the slip, the last sentence before the Conclusion reads:

Despite concerns about gaps in the record, we hold that AEDPA in this case precludes us from remanding for an evidentiary hearing.

The foregoing sentence should be replaced with the following sentences:

Diligence would require at least one step or the other to develop the factual basis of his claim. Bragg made no such efforts. Despite concerns about gaps in the record, we hold that AEDPA in this case precludes us from remanding for an evidentiary hearing.

With these amendments, the petition for rehearing dated March 21, 2001, is DENIED.

It is so ORDERED.