Simpson v. Lewis, 865 F.2d 265 (9th Cir. 1988)

MEMORANDUM^* 

Defendant Craig Simpson appeals pro se the district court's dismissal of his 28 U.S.C. § 2254 petition for writ of habeas corpus. We review the district court's dismissal of Simpson's petition de novo. Weygandt v. Ducharme, 774 F.2d 1491, 1492 (9th Cir. 1985).

Simpson first contends that he was denied effective assistance of counsel because his attorney failed to verify that a photographic lineup was untainted and failed to interview potential alibi witnesses. To establish ineffective assistance of counsel, a defendant first must show that counsel's representation fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 687-88. The defendant must then show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694. In the context of a guilty plea, to satisfy the second or "prejudice" requirement of the Strickland test, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985). In the instant case, Simpson has not shown that but for counsel's errors, the outcome would have been different. Since he has not satisfied the Strickland prejudice requirement, his ineffective assistance claim cannot succeed and it is unnecessary to decide whether his attorney's representation fell below an objective standard of reasonableness. See id. at 60.

Simpson also contends that his guilty plea was involuntary because his attorney's errors deprived him of knowledge which he would have used in deciding whether to plead guilty. Because this claim is dependent on the ineffective assistance claim and because we have decided that Simpson was not denied effective assistance of counsel, this claim must fail as well. Simpson contends, in addition, that he was denied a fair and impartial hearing before a grand jury. Again, because he was not denied effective assistance of counsel and his guilty plea was therefore voluntary, Simpson waived this challenge to his conviction when he pleaded guilty. See Marrow v. United States, 772 F.2d 525, 527 (9th Cir. 1985). Finally, Simpson contends that the district court erred in refusing to hold an evidentiary hearing on the issues raised in his habeas petition. Because Simpson has failed to show prejudice from his attorney's alleged errors, the factual issue of his attorney's competency need not be resolved. Therefore an evidentiary hearing was not required. Hill, 474 U.S. at 60.

AFFIRMED.