Unpublished Disposition, 863 F.2d 887 (9th Cir. 1988)

MEMORANDUM^** 

Abraham T. Yang petitions for a writ of habeas corpus. Yang was convicted in 1982 of attempted murder with sentence enhancements, assault with a deadly weapon with sentence enhancements, carrying a concealed weapon, and carrying a loaded firearm. He was convicted on the basis of the victim's identification, possession of the weapon that fired the bullet, and other circumstantial evidence. Yang's appeals in California state courts resulted in affirmance of the judgment. Yang's petition for a writ of habeas corpus in the district court was denied. We review de novo. Chatman v. Marquez, 754 F.2d 1531, 1533-34 (9th Cir.), cert. denied, 474 U.S. 841 (1985). We affirm the denial of Yang's petition.

The district court found no prejudice to Yang due to the thirteen month delay in filing the Supplemental Transcript. Similarly, Yang has not shown how he was prejudiced if, as he alleges, the wrong clerk certified the transcript. See Wacht v. Cardwell, 604 F.2d 1245, 1246-47 (9th Cir. 1979). Finally, Yang's claim that he was not allowed to "correct" the trial record is a new claim and is not within the jurisdiction of this court. See Ahlswede v. Wolff, 720 F.2d 1108, 1109 (9th Cir. 1983) (only issues in petition may properly be brought before appeals court). Even if it were, Yang's interpretation of "correct" seems to be the right to alter testimony so that it is more favorable to him. Yang certainly does not have a constitutional right to do so; therefore, this is not a cognizable habeas claim.

Yang often uses the term "forgery" to describe false or contradictory testimony, which is discussed below. He also alleges that portions of the trial transcript itself are forged. Specifically, he claims that testimony favorable to himself was deleted, that Gryzbowski's testimony was altered, that Coroner Stephens did not testify about the gun but such testimony appears in the transcript, that Officer Baker did not testify but his testimony appears in the transcript, that Officer Hennesy's testimony was altered so as not to conflict with Officer Baker's, and that Papauga's testimony was altered.

The district court repeatedly asked Yang for evidence to substantiate these serious allegations. Yang responded in two ways. First he claims the court stenographer entered the transcript into a word processor, yet the record did not come out in "computer paper." As the district court points out, the absence of dot matrix printing establishes nothing. Second, Yang argues that the testimony against him contains so many contradictions that it must be forged. This argument goes against logic and does not substantiate Yang's allegations. See Bellew v. Gunn, 532 F.2d 1288, 1290 (9th Cir.) (petitioner bears burden of proof), cert. denied, 426 U.S. 953 (1976).

Yang alleges that police offered false testimony and evidence and that the witness who claimed to be Vegas was an imposter. The district court properly dismissed these claims for not raising a cognizable claim. There is no constitutional right to not have witnesses perjure themselves. Yang does claim that the prosecutor knowingly used false evidence, which is cognizable. The district court requested Yang to produce substantiating evidence; when Yang could not do so the claim was dismissed as frivolous. The claim remains frivolous. See Adamson v. Ricketts, 758 F.2d 441, 449 (9th Cir. 1985).

Yang argues that much of the testimony against him was so contradictory as to be disbelieved. Many of the "contradictions" are not contradictions at all, many more are quite innocuous. None rise to the level requiring a judge, as a matter of law, to overturn the jury verdict.

Finally, Yang contends that the trial court's failure to discuss contradictions in the testimony violated his constitutional rights. Evaluation of evidence, however, is the province of the jury, not the judge. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). This court does not reassess witness credibility on a habeas corpus appeal. Adamson, 758 F.2d at 447. Yang does not allege that the judge did not instruct the jury properly or that the jury failed to perform its function correctly.

Miller v. Stagner suggested a balancing test for "determining whether the exclusion of evidence in the trial court violated petitioner's due process rights" when a prisoner files a habeas petition. 757 F.2d 988, 994 (9th Cir. 1985).

In weighing the importance of evidence offered by a defendant against the state's interest in exclusion, the court should consider the probative value of the evidence on the central issue; its reliability; whether it is capable of evaluation by the trier of fact; whether it is the sole evidence on the issue or merely cumulative; and whether it constitutes a major part of the attempted defense.... The court must give due weight to the substantial state interest ... in judicial efficiency....

Id. at 994-95.

Yang argues that the district court did not apply the test outlined in Miller correctly; Yang feels the evidence is so probative as to compel a finding of not guilty. Yang is incorrect.

The lack of residue on his hands does not prove he did not fire the gun. The letter from Washington to Yang's counsel says that at most it is neutral. The interpreter seeing carrot juice on Yang's hands when he was arrested does not show that Yang didn't wash his hands after firing the pistol. The results of the canine search have no bearing on Yang's innocence or guilt. Yang's argument that the court did not allow him to introduce evidence regarding a second pistol unconnected to the crime is frivolous. His argument concerning the lost item claim he placed with Burns security is equally unfounded: the report conflicted with his testimony, and did not prove he wasn't angry with Vegas.

Yang has two more contentions that are far more serious. He alleges that he was not allowed to speak at his trial, and--somewhat contradictorily--that the interpreter who translated what he said at trial purposefully mistranslated Yang's testimony. These claims are cognizable as violations of Yang's sixth and fourteenth amendment rights.

The district court specifically found that Yang testified for two days and that his ability to cross-examine the prosecution's witnesses was in no way impaired. This claim is frivolous. The district court also asked Yang to provide specific examples of mistranslation of his testimony, and dismissed the claim when he could not do so. On appeal, Yang once again merely makes a general assertion of mistranslation. The claim remains frivolous.

Yang claims his court appointed counsel was ineffective at both the trial and appellate level because counsel did not offer the "favorable" evidence discussed in section D above, did not challenge falsities in the prosecutor's evidence, did not challenge the search of Yang's apartment, and did not challenge the deprivation of Yang's constitutional liberties. Yang further contends that at the appellate level counsel did not protest the transcript and did not protest the forged transcript.

Strickland v. Washington establishes a two-part test for determining when counsel is ineffective by constitutional standards. 466 U.S. 668, 687 (1984). First, the defendant must show that "counsel made errors so serious that counsel was not functioning as the 'counsel' " guaranteed by the sixth amendment. Second, the defendant must show that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. Judicial scrutiny of an attorney's performance is highly deferential. Id. at 689. Counsel's reasoned tactical decisions are not faulted, even if hindsight shows that better decisions could have been made. Bashor v. Risley, 730 F.2d 1228, 1241 (9th Cir. 1984).

Strickland shows that Yang's claims of ineffective counsel are meritless. The record indicates that the decisions not to introduce "favorable" evidence were reasoned tactical decisions. The transcript indicates that Yang's counsel did conduct cross-examination of the prosecution's witnesses. Nor can Yang benefit from his counsel's failure to challenge the search of Yang's apartment or deprivation of constitutional rights. As discussed below, these are completely meritless claims and failure to assert them did not prejudice Yang's defense. Yang's contention that his appellate counsel did not protest the late supplemental transcript is untrue. The record indicates that counsel sought an order to show cause and explained the process to Yang.

Yang is precluded from claiming relief on most of his fourth amendment claims. When the state has provided an opportunity for full and fair litigation of a fourth amendment claim, he may not seek review on grounds that evidence used in his trial should have been excluded. Stone v. Powell, 428 U.S. 465, 481-82 (1976). Furthermore, all of Yang's fourth amendment claims are frivolous.

Yang claims the police had no probable cause to arrest him because the victim claiming to be Vegas was an imposter. This fanciful allegation is based on a misconception of where the gall bladder is located. Furthermore, regardless of his identity, the victim identified Yang. Yang contends there was no probable cause because the residue test "proved" he was innocent. This is flatly untrue.

Yang's argument that he did not receive a Miranda warning is beyond our review and is pointless. No evidence used in the trial was seized at the initial arrest, nor did Yang make any statement, nor was he denied counsel. The Heckler and Koch pistol that was introduced at the trial was found two days after the arrest in a search conducted after police obtained a warrant. As the district court points out, there is no evidence that the trial court refused to hear Yang's fourth amendment claims; rather, it appears Yang's counsel wisely refrained from pursuing meaningless claims.

Yang asserts a chaotic variety of constitutional "deprivations." Several of these are frivolous, such as his claim that he was arrested under an unconstitutionally vague statute.

Yang argues that basing his sentencing on the municipal hearing violated his sixth amendment right. The district court properly dismissed this claim. Yang was convicted pursuant to a trial that satisfied both sixth and fourteenth amendment standards. See Branch v. Cupp, 736 F.2d 533 (9th Cir. 1984).

Yang argues he was denied his right to confrontation because he is Chinese. This is flatly untrue. The record indicates Yang was provided with an interpreter during the trial.

Yang argues that there were no Chinese jurors hearing his case. The district court gave Yang leave to amend his petition to show that Chinese jurors were systematically or purposefully excluded from the jury, thus creating a cognizable due process or equal protection claim. See Carmical v. Craven, 547 F.2d 1380, 1382 (9th Cir. 1977) (petitioner has burden of making prima facie showing of discrimination in jury selection). Yang has not done so (in anything other than a conclusory manner) and his claim remains uncognizable. See Weathersby v. Morris, 708 F.2d 1493, 1497 (9th Cir. 1983) (sixth amendment does not guarantee a petit jury that mirrors the community), cert. denied, 464 U.S. 1046 (1984).

Yang argues that if the evidence he asserts to be "false and contradictory" is discounted, there is insufficient evidence to convict him. The test for sufficiency of evidence, however, does not rely on the defendant's assessment of the evidence. " [T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). The prosecution's evidence against Yang is overwhelming. It is not for Yang, or the court, to evaluate the credibility of the prosecution's witnesses. Id. at 318-19. Thus, Yang's claim fails.

Denial of Yang's petition for a writ of habeas corpus is AFFIRMED.