9th Circuit Case

Yesterday, a panel of the 9th Circuit affirmed the district court's denial of habeas relief in Foote v. Sue Del Papa, 2007 WL 1469776 (9th Cir. 2007). The petitioner's request was based on an ineffective assistance of counsel claim stemming from the attorney during his first direct appeal. The petitioner alleged that his appointed counsel was not "conflict free" because of a separate civil lawsuit between the petitioner/defendant and the Public Defender's Office based on allegations from the original trial.

In denying habeas relief, the court of appeals held that the decision to allow conflicted counsel to represent the petitioner during his appeal was not contrary to, or an unreasonable application of, clearly established law as determined by the Supreme Court. Here's the highlight:

AEDPA requires that Foote's “conflict of interest” claim not
implicate an “open question” in the Court's jurisprudence. See Carey v.
Musladin, 127 S.Ct. 649 (2006). While we have recognized that an “irreconcilable
conflict” between a criminal defendant and his trial counsel may entitle a
defendant to new counsel, see United States v. Moore, 159 F.3d 1154 (9th Cir.
1998), no Supreme Court case has held that an “irreconcilable conflict” between
the defendant and his appointed appellate counsel violates the Sixth Amendment.
Nor has the Supreme Court held that a defendant states a Sixth Amendment claim
by alleging that appointed appellate counsel had a conflict of interest due to
the defendant's dismissed lawsuit against the public defenders office and
appointed pre-trial counsel. Foote's “conflict of interest” claim thus fails.

I'm not an expert on this particular area of the 6th Amendment. That being said, isn't there an argument that the 6th Amendment rights of a defendant at trial are the same as his 6th Amendment rights during his first appeal as of right vis-a-vis the right to conflict-free representation? If that is correct, then wouldn't the failure to provide conflict-free counsel based on the difference between the trial and the first appeal implicate the "unreasonable application of" prong?

I'm going to open up comments (or try to). I'm specifically interested in what the actual law is on the substance of the 6th Amendment claim. Unless you are going to cite a case other than Williams v. Taylor, please don't make the "wrong" v. "unreasonable" argument.