Appeal from the United States District Court for the Central District of California. D.C. No. CV-92-819-ER. Edward Rafeedie, District Judge, Presiding
Before: Noonan and Leavy, Circuit Judges, and Fitzgerald,**fn** District Judge.
John Allen Jackson (Jackson), a California state prisoner, appeals pro se the district court's denial of his petition for writ of habeas corpus under 28 U.S.C. § 2254. In his petition, Jackson challenges his state conviction for second degree murder in the death of Latrice Osborne (Osborne) on the basis of ineffective assistance of counsel and prosecutorial misconduct. Jackson is currently serving a sentence of 15 years to life.
I. Prosecutorial Misconduct
Prosecutorial misconduct warrants habeas relief only where it "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181 (1986). See also Hall v. Whitley, 935 F.2d 164, 165 (9th Cir. 1991).
Jackson contends that it was misconduct for the prosecutor to introduce electrophoretic evidence without application of the so-called "Kelly/Frye" rule. See People v. Kelly, 130 Cal. Rptr. 144 (1976); Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). However, defense counsel failed to make a Kelly/Frye motion, or to raise any other objection to this evidence. Thus, Jackson waived this issue on appeal. People v. Kaurish, 276 Cal. Rptr. 788, 807-08 (1990) (en bank), cert. denied, 112 S. Ct. 121 (1991)*fn1
Jackson next contends that prosecutorial misconduct occurred because, in his closing argument, the prosecutor referred to facts not in evidence in that he stated blood was found on the trunk latch of Jackson's car and "persuaded" the jury that the white stain on the floor of Jackson's auto repair garage was caused by cleanser Jackson used to wash away Osborne's blood. These comments, however, did not exceed the wide latitude given prosecutors to discuss and draw inferences from evidence presented at trial. United States v. Molina, 934 F.2d 1440, 1445 (9th Cir. 1991); Kaurish, 276 Cal. Rptr. at 800. As such, they cannot support Jackson's claim of prosecutorial misconduct.
Lastly, Jackson contends the prosecutor inflamed the jury in his closing argument by stating, among other things, that Jackson killed Osborne because "he had the idea who in heaven's name is going to care she's just one more dead swat, one more dead prostitute" and that Jackson "dumped that poor girl's body on the freeway." Even if the prosecutor's statements were improper, they do not require reversal if they were harmless beyond a reasonable doubt. United States v. Asuncion, 973 F.2d 769, 773 (9th Cir. 1992), citing United States v. Sherlock, 962 F.2d 1349, 1364 (9th Cir. 1989), cert. denied, 113 S. Ct. 419 (1992). We cannot say that the prosecutor's comments "so infected the trial with unfairness as to make the resulting conviction a denial of due process." See Darden, 477 U.S. at 181; Hall, 935 F.2d at 165.
The district court did not err in dismissing Jackson's claim of prosecutorial misconduct.
II. Ineffective Assistance of Counsel
To prevail on his claim for ineffective assistance of counsel, Jackson must show that his counsel made unprofessional errors and that, but for such errors, it is reasonably probable that Jackson would have received a more favorable result. See Strickland v. Washington, 466 U.S 668, 694 (1984). Our review of counsel's performance is "highly deferential" and there is a "strong presumption" that counsel rendered adequate assistance and exercised reasonable professional judgment. Id. at 690.
Jackson contends trial counsel, Joy L. Wilensky (Wilensky), was ineffective in that she failed to investigate four components of the prosecution's case: namely, (a) the inability of the trunk latch on Jackson's 1974 Mercury cougar X-R-7 to inflict the abdominal injury on Osborne's body; (b) the fact that the chemical orthotolidine reacts not only to human blood, but also to rust, paint, iodine, etc.; (c) the likelihood that battery acid spilled on the concrete in Jackson's auto repair garage caused the white stains found on that floor, not cleanser used by Jackson to wash away Osborne's blood; (d) the inaccuracy of Detective Harold Rhudy's (Rhudy's) testimony that there were only two traffic signals from the Venice Pier to the end of the marina freeway; and (e) the mileage along that route.
Wilensky obtained the appointment of an independent criminologist, Bio-Technics Laboratories, Inc. (Bio-Technics), to test blood and saliva samples taken from Jackson and Lloyd Skannal (Skannal), Osborne's pimp and common law husband, and blood samples taken from both Osborne and Jackson's car. Wilensky did not pursue the matter after Bio-Technics reported their findings corroborated those of the police experts. We do not find Wilensky's performance ineffective. See Kaurish, 276 Cal. Rptr. at 808. Even assuming deficient performance, Jackson fails to demonstrate how any of the above would have changed the outcome of his case. He thus has not demonstrated prejudice. See id.
Jackson next claims Wilensky's performance was ineffective in that, despite his identification of several witnesses, Wilensky failed to interview any of them. Jackson contends these witnesses could have supported his assertion that Osborne left his garage with a man in a brown cadillac and might have been able to identify that man. However, none of the individuals identified would have testified they saw ...