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Jackson v. Aispuro

*fn* submitted: June 8, 1993.

KEVIN CHRISTOPHER JACKSON, PETITIONER-APPELLANT,
v.
BERNIE AISPURO, WARDEN; ATTORNEY GENERAL FOR THE STATE OF CALIFORNIA, RESPONDENTS-APPELLEES.



Appeal from the United States District Court for the Central District of California. D.C. No. CV-89-3412-ER. Edward Rafeedie, District Judge, Presiding

Before: Canby, Fernandez and T.g. Nelson, Circuit Judges.

MEMORANDUM

Kevin C. Jackson, a California state prisoner, appeals pro se the district court's order denying his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for kidnapping and robbery.*fn1 Jackson contends that trial counsel was ineffective. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Standard of Review

We review claims of ineffective assistance of counsel de novo. United States v. Swanson, 943 F.2d 1070, 1072 (9th Cir. 1992). A petitioner claiming ineffective assistance of counsel must demonstrate both that counsel's actions were "outside the wide range of professionally competent assistance," and that the petitioner was prejudiced as a result of counsel's actions. Strickland v. Washington, 466 U.S. 668, 687-90, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); Jeffries v. Blodgett, 974 F.2d 1179, 1195 (9th Cir. 1992). Moreover, mere conclusory allegations are insufficient to prove that counsel was ineffective. Shah v. United States, 878 F.2d 1156, 1161 (9th Cir.), cert. denied, 493 U.S. 869, 107 L. Ed. 2d 149, 110 S. Ct. 195 (1989). This court's review of counsel's performance is highly deferential, "indulging in a strong presumption that counsel's conduct falls within the wide range of professional assistance." Strickland, 466 U.S. at 689. To establish prejudice, appellant must demonstrate a reasonable probability that, "but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.

Discussion

Jackson raises several allegations in support of his claim of ineffective assistance of counsel. He contends that trial counsel failed to object to the prosecutor's impeachment of him with his prior felony conviction, failed to investigate, failed to subpoena witnesses, and failed to ask specific questions of certain witnesses.

Jackson contends that trial counsel was ineffective because he failed to object to the prosecutor's impeachment of Jackson with a prior robbery felony conviction despite a stipulation not to do so. At trial, the prosecutor stipulated that she would not impeach him with his prior felony unless he testified that he had "never been in trouble with the law before. "

After the defense rested, the prosecutor released her only rebuttal witness without putting forth any further evidence. Jackson then insisted on testifying in his own behalf, and defense counsel moved to reopen the case.*fn2 Because she no longer had an available rebuttal witness, the prosecutor warned defense counsel that the stipulation not to use Jackson's prior felony conviction for impeachment purposes would be withdrawn. Defense counsel informed Jackson that the stipulation was no longer in effect. Defense counsel did not object to the subsequent use of the prior conviction because the stipulation was no longer in effect.*fn3 Under these circumstances, we cannot say that defense counsel's conduct falls outside the wide range of professional assistance Jackson was entitled to at trial.

Jackson further contends that trial counsel was ineffective because he failed to object to the impeachment under section 352 of the California Evidence Code. We reject this contention. In a federal habeas proceeding, the issue is not whether the admission of evidence violated state law evidentiary principles, but whether the error rendered the trial so fundamentally unfair that it violated federal due process. Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir. 1991) (citations and quotations omitted).

Evidence introduced by the prosecution often raises more than one inference. Id. Inadmissible evidence violates the Due Process Clause only if there are no permissible inferences that the jury may draw from the evidence. Id. Even then, the evidence must "'be of such quality as necessarily prevents a fair trial.'" Id. (citations and footnote omitted). As the jurors were not constitutionally prohibited from considering Jackson's prior felony for impeachment purposes, we find that Jackson suffered no prejudice from trial counsel's failure to object to the admission of his prior felony conviction.*fn4 Cf. Fed. R. Evid. 609(a)(2).

Jackson further contends that trial counsel was ineffective because trial counsel failed to investigate his version of the robbery and kidnapping and failed to subpoena certain witnesses or to ask specific questions of certain other witnesses. We disagree. Trial counsel aggressively cross-examined prosecution witnesses. Trial counsel examined the victim on every variance between the victim's testimony at trial and his testimony at the preliminary hearing or his statements made to "9-1-1" and the investigating officers. Trial counsel used photographs and maps of the area in an attempt to prove that the victim's memory of the events was suspect and to challenge his credibility. In sum, trial counsel aggressively challenged the prosecutor's case in chief and made her prove beyond a reasonable doubt each element of the charged offenses. Trial counsel's choice as to which leads to follow and which witnesses to call is inherently a question of trial strategy. We do not find that counsel's choice of trial strategies or conduct at trial was outside the expected range of professional competence. See People of Territory of Guam v. Santos, 741 F.2d 1167, 1169 (9th Cir. 1984) (a tactical decision by counsel with which defendant disagrees cannot form the basis of a claim of ineffective assistance of counsel).

In addition, in light of the victim's testimony, Jackson's admissions to the police, Jackson's affirmative testimony at trial that he robbed the victim, and the evidence that Jackson was found in possession of the stolen car, we find that Jackson fails to demonstrate that trial counsel's trial strategy ...


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