Frank Darell Vaughn v. J. S. Woodford; Bill Lockyer

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANK DARELL VAUGHN,
Petitioner - Appellant,
v.
J. S. WOODFORD; BILL LOCKYER,
Respondents - Appellees.
No. 11-55828
D.C. No. 3:06-cv-01483-JM-
WMC
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, Senior District Judge, Presiding
Submitted January 7, 2013**
Pasadena, California
Before: KOZINSKI, Chief Judge, McKEOWN and M. SMITH, Circuit Judges.
Frank Vaughn appeals the district court’s denial of his petition for habeas
corpus. Vaughn argues that there was no manifest necessity for a mistrial in his
FILED
JAN 10 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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first trial because he was willing to waive his attorney’s asserted conflict of
interest.
Under AEDPA, the question before us is “not whether the trial judge should
have declared a mistrial. It is not even whether it was an abuse of discretion for
her to have done so—the applicable standard on direct review.” Renico v. Lett,
130 S. Ct. 1855, 1862 (2010). Rather, the question is whether the California Court
of Appeal’s determination that the trial court did not abuse its discretion was
“based on an unreasonable determination of the facts” or 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);
Renico, 130 S. Ct. at 1862. Under Supreme Court precedent, in cases where a
mistrial is ordered over a defendant’s objection, retrial is permissible only if there
is “manifest necessity” for the mistrial. Arizona v. Washington, 434 U.S. 497, 505
(1978). Although a defendant may waive the right to conflict-free counsel,
Holloway v. Arkansas, 435 U.S. 475, 483 n.5 (1978), a trial court has “substantial
latitude” to refuse a defendant’s waiver of conflicts of interest where there is an
actual or potential conflict. Wheat v. United States, 486 U.S. 153, 163 (1988).
Courts have “an independent interest in ensuring that criminal trials are conducted

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within the ethical standards of the profession and that legal proceedings appear fair
to all who observe them.” Id. at 160.
Faced with Vaughn’s attorney’s assertion that he had an “obvious conflict”
and could not go forward, the trial court carefully considered Supreme Court and
other precedent, appointed conflicts counsel (who agreed with Vaughn’s original
attorney that a mistrial was in Vaughn’s best interest), heard from the parties
multiple times, and considered alternatives to a mistrial. The California Court of
Appeal’s determination that the trial court “had the discretion to reject Vaughn’s
proffered waiver of his right to conflict-free counsel and to declare a mistrial based
on legal necessity, even over Vaughn’s objection” was neither “based on an
unreasonable determination of the facts,” nor was it an “unreasonable application
of . . . clearly established Federal law.” 28 U.S.C. § 2254(d)(1).
AFFIRMED.

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