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Al-Qaadir v. Gallegos

filed: June 2, 1995.

FAHIM AL-QAADIR, AKA LEJOHN REESE, PETITIONER-APPELLANT
v.
MICHAEL GALLEGOS, SUPERINTENDENT, RESPONDENT-APPELLEE



Appeal from the United States District Court for the Northern District of California. D.C. No. CV-93-00002-SBA. Saundra B. Armstrong, District Judge, Presiding.

Before: Tang and O'scannlain, Circuit Judges; Merhige,*fn1 District Judge.

MEMORANDUM*fn1a

Al-Qaadir appeals the denial of his 28 U.S.C. § 2254 petition for writ of habeas corpus.

I

As his first ground for federal relief, Al-Qaadir alleges that his trial counsel was ineffective.

To demonstrate ineffective assistance of counsel, a habeas petitioner must show first that counsel's performance fell below that of a reasonable attorney and, second, that counsel's errors created a reasonable probability that, but for the errors, the outcome of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). "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).

We analyze Al-Qaadir's specific contentions under the Strickland standard.

A

Al-Qaadir argues that trial counsel, in his closing argument, improperly conceded that the homicides at issue were "murder." This concession, Al-Qaadir claims, precluded the jury from considering the lesser included charge of manslaughter.*fn1 Similarly, Al-Qaadir also contends that, in closing, counsel failed to argue all available defenses.

We are not persuaded that counsel conceded the degree of the crime committed. It is likely, as the state asserts, that counsel used the word "murder" in the colloquial sense to indicate that people had been killed, and not in the legal sense -- that is, not to indicate that the crime at issue was murder rather than manslaughter.

Even if counsel intended to concede the degree of the crime, counsel maintained throughout his closing argument that Al-Qaadir had not been involved in the shooting and that the prosecution had failed to prove such involvement beyond a reasonable doubt. Counsel's concession thus reflects a strategy that does not fall outside the broad range of competent assistance.

Similarly, we perceive a strategy supporting counsel's decision not to argue all available defenses in closing. Based on his understanding of the evidence, counsel apparently determined that Al-Qaadir's best defense was one of non-involvement. Counsel could have argued, in the alternative, that the most the evidence supported was a manslaughter conviction; however, counsel could have determined that to argue such an alternative would have signaled to the jury that counsel was not confident of his client's non-involvement. Counsel's tactics, although unsuccessful, were not unreasonable. *fn2

B

Al-Qaadir next argues that trial counsel's cross-examination of the prosecution's witnesses fell below reasonable standards of professional competence. As Al-Qaadir describes it, counsel made the choice to "forego cross-examination of the entire prosecution ...


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