Appeal from the United States District Court for the District of Idaho. DC No. CV-90-0195-HLR. Harold L. Ryan, District Judge, Presiding
Before: Wright, Fletcher, and Canby, Circuit Judges
Idaho prisoner Larry Peter Parrott appeals the district court's denial of his petition under 28 U.S.C. § 2254 for a writ of habeas corpus. Parrott contends that he was deprived of his Sixth Amendment right to effective assistance of counsel. Parrott also maintains that the district court abused its discretion in failing to hold an evidentiary hearing on his claim and in failing to appoint counsel for Parrott. Because we are convinced that Parrott was not prejudiced by his trial counsel's conduct, we affirm the district court's denial of Parrott's petition.
We review de novo the district court's denial of Parrott's habeas corpus petition. Nevius v. Sumner, 852 F.2d 463, 466 (9th Cir. 1988), cert. denied, 490 U.S. 1059 (1989). Because the district court rejected the petition without holding an evidentiary hearing, we may affirm only if Parrott has failed to allege facts that, if true, would entitle him to relief. Hendricks v. Vasquez, 974 F.2d 1099, 1103 (9th Cir. 1992) (citing Creech v. Arave, 947 F.2d 873, 887 (9th Cir. 1991), cert. denied, 113 S. Ct. 1840 (1993)). We conclude that Parrott has failed to make the requisite showing.
Parrott's Allegations of Ineffective Assistance of Counsel
To prevail on his claim of ineffective assistance of counsel, Parrott must demonstrate (1) that his trial attorney's actions were "outside the wide range of professionally competent assistance," and (2) that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687-90, 694 (1984). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. Whether the facts alleged by Parrott satisfy the performance and prejudice components of the ineffectiveness inquiry is a question that we review de novo. United States v. Layton, 855 F.2d 1388 (9th Cir. 1988), cert. denied, 489 U.S. 1046 (1989).
The record supports to a limited degree Parrott's assertion that defense counsel Wilson's conduct fell below an objectively reasonable standard of performance. In none of the instances of ineffective assistance that Parrott alleges, however, was Wilson's performance so egregiously deficient as to undermine our confidence in the outcome of the trial.
1. Failure to impeach the victim with a prior inconsistent statement
Wilson's failure to impeach Lilia Garcia with a purported prior inconsistent statement is not an instance of ineffective assistance of counsel. The statement is contained in a report that a police officer made the day after the alleged offense occurred. The report was a summary of a police investigation and not a statement written or dictated by Garcia herself. The day after the alleged offense occurred, Garcia wrote a statement in which she averred:
All I can recall is having swallowed twice from my glass. The next thing I recall is that it was dark outside, I felt dizzy and Larry was shoving me and hitting me on the head with his fists, shoving me towards the bedroom.
Had Wilson attempted to impeach Garcia with the police report, the state could have used Garcia's own written statement to rehabilitate her credibility. Fed. R. Evid. 801(d)(1)(B). Omitting to impeach Garcia with the police report does not constitute conduct that falls below an objective standard of reasonableness. See Strickland, 466 U.S. at 688. Nor is there a reasonable probability that, but for the omission, the result of the trial would have been different. See id. at 694.
2. Failure to investigate and present ...