Kincaid v. Lamarque

U.S. Court of Appeals for the Ninth Circuit March 19, 2002

Kincaid v. Lamarque, 31 F. App'x 532 (9th Cir. 2002)

Opinion of the Court

MEMORANDUM **

David M. Kincaid appeals the district court’s denial of his habeas petition. We affirm.

The state trial court conducted an evidentiary hearing on Kincaid’s Marsden motion, and both that court, and the California Court of Appeal, found that Kincaid’s evidence of an irreconcilable conflict *533was wholly conclusory. Kincaid faults the adequacy of the inquiry, but, assuming the issue is preserved, we cannot agree. The state court questioned Kincaid and his counsel to elicit details about the purported breakdown in communication, but neither provided any. Cf. United States v. Adelzo-Gonzalez, 268 F.3d 772, 773-74 (9th Cir. 2001) (trial court did nothing to inquire into truth of serious accusations against lawyer). As there was no constructive denial of assistance of counsel, Kincaid must show that he was prejudiced by such conflict as there was. Schell v. Witek, 218 F.3d 1017, 1022 (9th Cir. 2000) (en banc). This he has not done.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.

Reference

Full Case Name: David M. KINCAID, Petitioner—Appellant v. Anthony LAMARQUE, Warden, Respondent—Appellee
Status: Published