Unpublished Disposition, 842 F.2d 1294 (9th Cir. 1982)

MEMORANDUM^** 

Russell appeals from the order of the district court denying his petition for a writ of habeas corpus. We have jurisdiction pursuant to 28 U.S.C. § 2253.¹  We affirm.

Checks worth $1145.45 were stolen from the Washington State Ferry System, Southworth Terminal, on November 1, 1981. Russell attempted to negotiate the stolen checks at the West Seattle branch of the People's Bank (Bank) on November 9. When the teller refused Russell left the Bank, leaving a tape in the adding machine totalling the amount sought at $1145.45.

Russell was charged by information with the theft. The information was later amended and Russell was tried on the charge of second degree possession of stolen property. The tape, exhumed on November 16 from the Bank's garbage for November 9 by Bank employees at the request of Seattle Police Detective Barrett, was admitted into evidence. The jury convicted Russell on December 9, 1982, and he was sentenced to a five year term of imprisonment. The Court of Appeals of the State of Washington affirmed, simultaneously denying Russell's Personal Restraint petition. The Supreme Court of Washington denied review. Russell filed a petition for a writ of habeas corpus in the United States District Court for the Western District of Washington. The petition was dismissed for failure to exhaust available state remedies. Two more Personal Restraint petitions were heard and denied by the state court of appeals. The Supreme Court of Washington again denied review. Russell again filed for habeas relief. The matter was referred to United States Magistrate Philip K. Sweigert, who recommended denial of the petition. The district court adopted the report and recommendation, denying the petition without a hearing.²  It is this order that Russell asks this court to overturn. We decline.

We review the denial of a petition for a writ of habeas corpus de novo. Lincoln v. Sunn, 807 F.2d 805, 808 (9th Cir. 1987). Findings of fact of the state courts, unless found to be vulnerable to the provisions of 28 U.S.C. § 2254(d), are presumed correct. Sumner v. Mata, 449 U.S. 539, 547 (1981).

Russell's first contention is that the one week delay before conducting the garbage search, and the failure to procure a warrant, render the search unreasonable in violation of the Fourth Amendment. A related argument is that the delay made the fruit of the search--the adding machine tape--so unreliable that its admission into evidence renders Russell's conviction a violation of the due process clause of the Fourteenth Amendment. Russell clearly lacks standing to invoke the Fourth Amendment against a consensual search of the Bank's property. See, e.g., Rawlings v. Kentucky, 448 U.S. 98, 104-06 (1980); Rakas v. Illinois, 439 U.S. 128 (1978). Assuming arguendo that the tape was not highly probative, it was not so unreliable as to render Russell's trial fundamentally unfair. See Lincoln, supra, 807 F.2d at 816. Russell's counsel had every opportunity to minimize its effect before the jury. The trial court's evidentiary rulings provide no basis for issuing the writ.

Russell next challenges the adequacy of the assistance provided by his appointed trial counsel. To show a denial of his right to effective assistance of counsel, Russell must prove that (1) counsel did not perform at the level of a reasonably competent attorney acting diligently and conscientiously on his behalf, and (2) that counsel's performance probably affected the outcome of his case. See Strickland v. Washington, 466 U.S. 668 (1984); Woratzeck v. Ricketts, 820 F.2d 1450, 1453 (9th Cir. 1987). In so doing, Russell must overcome a strong presumption that counsel was competent. Strickland, 466 U.S. at 689; Woratzeck, 820 F.2d at 1453. Russell has not alleged, much less shown, that he was prejudiced by the performance of counsel. He has also failed to identify strategic maneuvers so misguided or illogical as to raise a claim of ineffectiveness. Though "strategy" and "tactics" are not talismanic bulwarks against judicial scrutiny of attorney performance, the presumption of competence is at its height when litigation decisions are challenged. See Strickland, supra, 466 U.S. at 689 (counsel has wide latitude in making tactical decisions). Russell has failed to hurdle this presumption.³  The rejection of his claim was proper.

Next, Russell alleges respondent's lack of dispatch in bringing him to trial violated state and federal speedy trial guarantees. Insofar as he alleges a state law violation, Russell raises no claim cognizable before a federal tribunal. Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983). The magistrate applied the Barker v. Wingo, 407 U.S. 514 (1972), balancing test and determined that no federal constitutional deprivation occurred.⁴  We agree. No prejudice appears and Russell neither objected to the original trial date (September 24, 1982) nor opposed the state's request for a continuance.

Russell next contends he was denied due process by the trial court's reliance on materially false allegations at his sentencing hearing. Due process requires that a sentence be based upon reliable information. United States v. Tucker, 404 U.S. 443, 446 (1972); United States v. Safirstein, 827 F.2d 1380, 1385 (9th Cir. 1987). The state court of appeals found as a fact that the trial judge did not rely on the unproven allegations of criminal conduct. State appellate findings of fact come within the presumption of correctness commanded by section 2254(d). Hayes v. Kincheloe, 784 F.2d 1434, 1437 (9th Cir. 1986), cert. denied, 108 S. Ct. 198 (1987). The presumption is dispositive here as the finding enjoys support in the record. We conclude that Russell's sentence did not violate the due process clause.

Russell also claims that his prosecution for possession of stolen property after the dismissal of the information charging theft violated double jeopardy. The magistrate correctly found that the information was amended prior to trial, not dismissed, and jeopardy never attached on the theft charge. We agree. See United States v. Jaramillo, 745 F.2d 1245 (9th Cir. 1984), cert. denied, 471 U.S. 1066 (1985).

Russell claims constitutional error in the court's failure to instruct the jury on (1) a lesser included offense (third degree possession of stolen property) and (2) the definition of "knowledge". Russell failed to request either. It appears there was no material dispute as to the value of the property. Under these circumstances, a lesser included instruction was unwarranted. We cannot say that the failure to define knowledge infected the fairness of the entire trial. We conclude that the trial court's instructions did not deprive Russell of his right to a fair trial.

Finally, Russell seeks damages for his allegedly illegal incarceration. The award of monetary relief is not authorized by section 2254. Preiser v. Rodriguez, 411 U.S. 475 (1973).

AFFIRMED.