Appeal from the United States District Court for the District of Oregon. Robert E. Jones, District Judge, Presiding. D.C. No. CV-90-06098-REJ
Before: Canby, Norris, and Leavy, Circuit Judges.
Lewis Edward Larson, an Oregon state prisoner, appeals the district court's dismissal of his 28 U.S.C. § 2254 habeas corpus petition. We review de novo, Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989), and we affirm.
Larson contends that he was denied effective assistance of trial counsel because his counsel:
1) failed to excuse three biased jurors;
2) asked prejudicial, unfounded, and irrelevant questions during voir dire of prospective jurors;
3) failed to subpoena a material witness;
4) improperly investigated and prepared the case;
5) failed to conduct a full and vigorous cross-examination of the witnesses.*fn1
To demonstrate ineffective assistance of counsel, a defendant must show that his or her attorney's performance was deficient and that the deficient performance prejudiced his or her defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient performance is demonstrated when "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . ." Id. at 689. Prejudice is established if "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A tactical decision by counsel with which the defendant disagrees cannot form the basis of a claim of ineffective assistance of counsel. Guam v. Santos, 741 F.2d 1167, 1169 (9th Cir. 1984).
Larson contends that his counsel was ineffective because she failed to use peremptory challenges to excuse three prospective jurors. This contention lacks merit.
Three jurors stated that they knew either the Judge or the prosecutor. Nevertheless, upon further questioning by the trial Judge, each juror stated that he or she would have no difficulty acquitting Larson if he or she had a reasonable doubt about his guilt. Moreover, there is insufficient evidence to conclude that the failure to challenge in this case amounted to ineffective assistance of counsel. First, the jurors satisfied the Judge of their impartiality when they assured him that they could base their verdict on the evidence alone. Second, there is no evidence that the jurors had discussed this case with either the Judge or the prosecutor. Finally, the failure of Larson's counsel to challenge the jurors may have been a tactical decision. Therefore, Larson failed to show that his counsel's actions were ...