Unpublished Disposition, 868 F.2d 1273 (9th Cir. 1988)

MEMORANDUM^** 

Wilcox appeals pro se the district court's Order granting summary judgment in favor of the government and dismissing his 28 U.S.C. § 2254 habeas petition. Wilcox was convicted of first degree manslaughter in the shooting death of his wife. Wilcox contends that the district court erred in holding that he was not denied effective assistance of counsel either at trial or on appeal; that his unlawful search and seizure claim did not warrant habeas corpus relief; that the information charging him with first degree murder provided sufficient notice of the first degree manslaughter charge of which he was convicted; that first degree manslaughter is a lesser included offense of first degree murder; and that several jury instructions at trial were not constitutionally defective.

This court reviews the district court's dismissal of Wilcox's petition for writ of habeas corpus de novo. Weygandt v. Ducharme, 774 F.2d 1491, 1492 (9th Cir. 1985).

Wilcox contends that he was denied effective assistance of counsel at trial. See Strickland v. Washington, 466 U.S. 668 (1984) (where the Supreme Court set forth a two-part standard for evaluating claims of ineffective assistance of counsel). Wilcox presented no evidence indicating that his attorney's alleged delay in contacting a prosecution witness was unreasonable or resulted in any prejudice to Wilcox. Furthermore, Wilcox presented no evidence showing that his attorney's failure to (1) impeach a prosecution witness regarding the fact that he was a patient at a mental health center or (2) call two witnesses who had allegedly overheard an argument between Wilcox and his wife the evening before her death were not legitimate trial tactics. Nor has Wilcox shown any resulting prejudice. See United States v. Mayo, 646 F.2d 369, 374-75 (9th Cir. 1981), cert. denied, 454 U.S. 1127 (1981).

Next, Wilcox contends that his attorney's failure to include him in a discussion with the court and the prosecutor about jury instructions constituted ineffective assistance. Federal Rule of Criminal Procedure 43(c) (3) states that a defendant need not be present at "a conference or argument upon a question of law." Because jury instructions relate solely to matters of law, Wilcox had no constitutional right to be present at this discussion, and his attorney's conduct was therefore reasonable.

Finally, Wilcox contends that his attorney's failure to file a notice of appeal or to supply Wilcox with the records necessary to prepare his pro se appellate brief amounted to ineffective assistance of counsel. Because Wilcox did eventually receive the records he sought, and because his appeal was considered by the court, he has not shown any prejudice stemming from these alleged failures by his attorney.

Since Wilcox has failed to show both that his attorney's conduct was unreasonable and that he was prejudiced as a result, his claim of ineffective assistance of counsel at trial must fail.

Wilcox alleges that he was denied a meaningful appeal because his counsel on appeal withdrew. See Penson v. Ohio, 57 U.S.L.W. 4020 (Nov. 29, 1988) (where Supreme Court reversed defendant's conviction after finding that appellate counsel and Ohio Court of Appeals had failed to follow procedures required by Anders v. California, 386 U.S. 738 (1967), for counsel's withdrawal from frivolous appeal). Here, unlike the situation in Penson, both Wilcox's attorney and the Washington Court of Appeals followed the procedures set forth in Anders. His attorney filed a motion to withdraw and an Anders brief which indicated that while counsel could find no good faith grounds for appeal, Wilcox could possibly pursue an ineffective assistance of counsel argument. Wilcox then filed a pro se brief. The Washington Court of Appeals considered these materials and found the appeal to be frivolous.¹ 

Wilcox has not shown that he was denied a meaningful appeal due to his attorney's conduct. Thus his claim of ineffective assistance of counsel on appeal fails as well.

Wilcox next contends that his rifle was unconstitutionally seized from his home on the morning of the shooting before a search warrant was obtained. This issue was not raised at trial. ER at 47. The district court found that because Wilcox admitted that he shot his wife but claimed it was accidental, the introduction of the gun at trial, even if it had been illegally seized, was harmless beyond a reasonable doubt. The district court is correct; introduction of the gun at trial could not have hurt Wilcox since his defense was that he accidentally shot his wife with the rifle in question.

Wilcox contends that he cannot be convicted of manslaughter because he was only charged with murder and had no notice that he might be convicted of manslaughter. Manslaughter is a lesser included offense of murder. State v. Jones, 95 Wash. 2d 616, 621, 628 P.2d 472, 475-76 (1981). When warranted by the evidence, the court is required to instruct the jury on manslaughter as a lesser included offense to murder. State v. Berge, 25 Wash. App. 433, 439, 607 P.2d 1247, 1250-51 (1980). Under Washington law, murder requires intent to kill, Revised Code of Washington (RCW) 9 A. 32.030, while manslaughter requires recklessness. RCW 9 A. 32.060. In the present case, the district court found that the manslaughter instruction was appropriate because although Wilcox admitted that his gun discharged while he was holding it, he claimed that he did not intend to shoot his wife. He thus had notice of the facts constituting the lesser charge of first degree manslaughter, and therefore had adequate notice of the manslaughter charge of which he was ultimately convicted. See United States v. Martin, 783 F.2d 1449, 1453 (9th Cir. 1986).

Even assuming that Wilcox had no notice of the lesser included offense instruction, he has not shown any prejudice since it is difficult to imagine how he would have altered his testimony or defense strategy concerning the accidental discharge of the gun. Therefore, any alleged error was harmless. Furthermore, since the mental state of recklessness is included within the mental state of intent, Wilcox was not denied notice in being convicted of manslaughter even though that charge did not appear in the information. Thus, this claim also fails.

Wilcox contends that the giving of several jury instructions violated his due process rights. He first contends that the trial court erred in instructing the jury that the killing could not be considered justified. The district court noted that under Washington law a homicide may be justified in certain circumstances if committed in defense of self, of specified others, or of property. RCW 9 A. 16.050. In this case, however, Wilcox offered no evidence that the killing was done in self-defense. Rather, he contended that it was accidental, and the jury was instructed as to the law on accidental or excusable homicide. Where no evidence in support of a particular defense has been presented, the court may instruct that the defense is not available. State v. Marten, 73 Wash. 2d 898, 902, 441 P.2d 520, 522 (1968); see also State v. McCullum, 98 Wash. 2d 484, 497, 656 P.2d 1064, 1068 (1983) (some evidence by defense of self-defense needed to raise issue of justification in murder trial). The district court was therefore correct in finding that the instructions given adequately addressed Wilcox's theory of defense and that the giving of instruction no. 8 did not violate his constitutional rights.

Wilcox contends that the trial court's circumstantial evidence instruction was erroneous because it gave equal weight to direct and circumstantial evidence. The instruction correctly states the law of Washington. See State v. Gosby, 85 Wash. 2d 758, 766-67, 539 P.2d 680, 685 (1975) (no generalization can be made as to whether direct evidence or circumstantial evidence is more trustworthy or probative); United States v. Gulino, 588 F.2d 256, 257-58 (9th Cir. 1978) (where Ninth Circuit found a similar instruction to be correct). There was no constitutional error in giving this instruction.

Wilcox contends that the giving of instruction no. 3 was improper in that it put pressure on the jurors to abandon their independent views in order to reach a verdict. This instruction has been cited as the preferred form in the state of Washington, State v. Faucett, 22 Wash. App. 869, 874 n. 4, 593 P.2d 559, 562 n. 4 (1979), and approved by the Ninth Circuit. Papadakis v. United States, 208 F.2d 945, 955 (9th Cir. 1953). Instruction no. 3 clearly tells jurors that they should not surrender their honest convictions "for the mere purpose of returning a verdict." Therefore, the trial court did not constitutionally err in giving this instruction.

Wilcox contends that the phrase "however long or short" in instruction no. 9, which relates to the premeditation element necessary for first degree murder, was improper because it wipes out the distinction between first and second degree murder. The district court correctly found that because Wilcox was acquitted of murder, any alleged error regarding instruction no. 9 is now moot. Finally, Wilcox contends that the bracketing or circling of certain elements in written instructions given to the jury on first and second degree murder was error, in that this could have placed undue emphasis on a single element and could possibly have directed a verdict. Because Wilcox was acquitted of murder, any alleged errors regarding instructions no. 11 and 14--both murder instructions--are moot. In light of the foregoing, the district court was correct in its conclusion that, reviewing the entire jury charge given at Wilcox's trial, Wilcox's due process rights were not violated.

Because all of Wilcox's claims are without merit, we affirm the district court's grant of summary judgment in favor of the government and dismissal of Wilcox's petition for writ of habeas corpus.

AFFIRMED.

REINHARDT, Circuit Judge, concurring.

I concur in the result.