Lavarius Jermaine McCord v. State of California; Warden of Calipatria State Prison

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously finds this case suitable for decision without**
oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Glenn L. Archer, Jr., Senior United States Circuit
Judge for the Federal Circuit, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LAVARIUS JERMAINE MCCORD,
Petitioner - Appellant,
v.
STATE OF CALIFORNIA; WARDEN
OF CALIPATRIA STATE PRISON,
Respondents - Appellees.
No. 09-15895
D.C. No. 3:07-cv-05217-CRB
MEMORANDUM *
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Submitted April 16, 2009**
San Francisco, California
Before: ARCHER, CALLAHAN, and BEA, Circuit Judges.***
FILED
APR 21 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The parties are familiar with the facts of the case, so we repeat them here1
only to the extent necessary to explain our decision.
2
Lavarius Jermaine McCord (“McCord”) appeals the district court’s denial of
his petition for writ of habeas corpus. We have jurisdiction pursuant to 28 U.S.C.
§ 2253, and we affirm.1
In denying McCord’s habeas petition, the district court concluded that
McCord failed to show that an irreconcilable conflict existed between himself and
appointed counsel and that McCord’s trial counsel was constitutionally ineffective.
We agree.
“The right to counsel does not guarantee ‘a right to counsel with whom the
accused has a meaningful attorney-client relationship.’” Daniels v. Woodford, 429
F.3d 1181, 1197 (9th Cir. 2005) (quoting Morris v. Slappy, 461 U.S. 1, 3-4
(1983)). A state court’s denial of a Marsden motion amounts to a constitutional
violation where there was an irreconcilable conflict between the defendant and
counsel which prevented effective representation. Schell v. Witek, 218 F.3d 1017,
1026 (9th Cir. 2000) (en banc). At McCord’s Marsden hearing, the trial court
questioned defense counsel in response to McCord’s allegations that he was
“getting inadequate representation.” Defense counsel explained that he had
performed a “vast amount of investigation” into McCord’s case; he was not biased

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against McCord; he had filed several motions on McCord’s behalf; and he had met
with McCord several times. Additionally, counsel stated that while he had sought
continuances in the past, he was currently prepared for trial. The state trial judge
found that defense counsel was performing adequately and that any conflict
between McCord and his counsel was not so irreconcilable as to warrant the
appointment of new counsel. We see no error in the district court’s conclusion that
the state trial judge’s findings were supported by the record.
For a habeas petitioner to prevail on a claim of ineffective assistance of
counsel, he must prove that his counsel’s representation fell below an objective
standard of reasonableness and that he was prejudiced by this deficient
performance. Strickland v. Washington, 466 U.S. 668, 687-89 (1984). Because
McCord failed to prove that defense counsel’s actions fell below an objective
standard of reasonableness, we agree with the district court’s rejection of
McCord’s ineffective assistance of counsel claim.
Accordingly, we affirm the district court’s denial of habeas relief.
AFFIRMED.

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