E. Attorney Conflict of Interest An actual conflict is one “that affected counsel’s performance — as opposed to a mere theoretical division of loyalties.” Mickens v. Taylor, 535 U.S. 162, 171, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002). The Court reviews such claims de novo. Lambert v. Blodgett, 393 F.3d 943, 985 (9th Cir.2004). The Government initially argues that there can be no finding of inadequate assistance of counsel if we hold that Whitney waived his right to counsel; that once the Sixth Amendment is waived, it cannot be violated. Cf. Robinson v. Ignacio, 360 F. 3d 1044, 1056 (9th Cir.2004). The Government’s argument is unpersuasive. Counsel must meet constitutional requirements prior to a defendant’s waiver if the Sixth Amendment has attached. Cf. Robinson, 360 F.3d at 1059 (<HOLDING>). Whitney points to two conflicts. First, he
holding that constitution protected right to counsel at sentencing even where it was waived at trial holding that notice to counsel may be waived holding that a criminal defendant has a sixth amendment right to counsel at trial holding that at resentencing the district court was entitled to assume that the waiver was still in effect and was not required to again advise defendant of his right to counsel where defendant had waived counsel at the plea stage holding that the right applies at capital sentencing in particular