Unpublished Disposition, 876 F.2d 898 (9th Cir. 1989)

MEMORANDUM^** 

Henry Wilson, Jr. appeals the district court's denial of his 28 U.S.C. § 2255 motion. Wilson contends that his trial counsel provided ineffective assistance by withdrawing a notice of intent to rely on an insanity defense without Wilson's knowledge or consent, and by failing to document disagreements between himself and Wilson concerning withdrawal of the defense. He further contends that the district court erred by denying his 28 U.S.C. § 2255 motion without an evidentiary hearing. We affirm.

* Wilson and two codefendants were indicted for armed bank robbery. Marvin Stender, Wilson's attorney, filed a notice of intent to rely on an insanity defense, pursuant to Fed. R. Crim. P. 12.2. One month later, Stender withdrew the notice. Wilson was tried jointly with his codefendants, and all three were convicted. This court affirmed their convictions in United States v. Brannon, 616 F.2d 413 (9th Cir.), cert. denied, 447 U.S. 908 (1980).

Wilson filed pro se a motion under 28 U.S.C. § 2255 alleging that he had received ineffective assistance of counsel. The district court denied the motion without a hearing.

Wilson filed pro se a second section 2255 motion alleging (1) denial of due process, and (2) ineffective assistance of counsel based on Stender's failure (a) to investigate adequately an insanity defense, (b) to present a diminished capacity defense, and (c) to obtain Wilson's consent before deciding not to present an insanity defense. The district court issued an order to show cause only as to the claims that Stender had failed to investigate adequately, and to present, an insanity defense, and directed Stender to disclose all matters revealed in confidence to him relating to Wilson's psychiatric condition. In response, Stender sent the prosecutor an explanatory letter, various documents, and several psychiatric reports.

The court denied Wilson's section 2255 motion without a hearing. The district court concluded, based on substantial documentary evidence, that Stender performed a reasonable investigation of the insanity defense and made reasonable decisions that rendered further investigation unnecessary. Wilson timely appeals.

II

A claim of ineffective assistance of counsel presents a mixed question of law and fact, which we review de novo. United States v. Birtle, 792 F.2d 846, 847 (9th Cir. 1986). We also review de novo the denial of a section 2255 motion. United States v. Espinoza, 866 F.2d 1067, 1069 (9th Cir. 1988).

Wilson contends that Stender rendered ineffective assistance by withdrawing, without Wilson's consent or knowledge, a notice of intent to present an insanity defense. Wilson contends that he had a fundamental right to determine whether to plead not guilty by reason of insanity, and that counsel's usurpation of that decision requires reversal even without a showing of prejudice. These claims lack merit.¹ 

To obtain relief for a claim of ineffective assistance of counsel, a movant must demonstrate that his attorney made an error that a reasonably competent attorney acting as a diligent and conscientious advocate would not have made, and that there was a reasonable probability that, but for such error, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 686-87, 694 (1984).

Under federal law, there is no separate plea of not guilty by reason of insanity. Fed. R. Crim. P. 11(a) (1). Rather, that plea is encompassed within the general plea of not guilty. United States v. Clark, 617 F.2d 180, 186 n. 12 (9th Cir. 1980). The decision whether to present an insanity defense is a tactical decision that lies within the realm of decisions entrusted to counsel. See United States v. Stern, 519 F.2d 521, 524-25 (9th Cir.), cert. denied, 423 U.S. 1033 (1975); cf. Fritchie v. McCarthy, 664 F.2d 108, 214-15 (9th Cir. 1981) (decision not to present diminished capacity defense was tactical decision within range of professional judgment).

Wilson concedes that a choice of defense is a strategic choice that may be unilaterally exercised by counsel. We have found no authority holding that failure to discuss a choice of affirmative defense deprives a defendant of his sixth amendment rights, although full communication between attorney and client is of course to be encouraged. Cf. Jones v. Barnes, 463 U.S. 745, 751 (1983) (accused has ultimate authority to make certain fundamental decisions such as whether to plead guilty, waive a jury, testify in his own behalf, or take an appeal); Marrow v. United States, 772 F.2d 525, 527-28 (9th Cir. 1985) (failure of counsel to advise client of right to appeal not a breach of duty in all cases, but was a breach when there was possibility that guilty plea was coerced). Even assuming Wilson's version of the facts to be true, we find no unconstitutional ineffectiveness of counsel. See Strickland, 466 U.S. at 686-87.

Wilson claims that Stender rendered ineffective assistance by failing to document his discussions with Wilson concerning withdrawal of the insanity defense. Wilson raises the failure-to-document claim for the first time on appeal. Accordingly, he has waived the issue. See Willard, 812 F.2d at 465. In any event, the claim lacks merit.

Wilson claims that Standard 4-5.2 of the American Bar Association Standards for Criminal Justice requires counsel to document any significant disagreement with a client on tactical or strategic matters. Am.Bar Ass'n, Standards for Criminal Justice, 4-5.2 (2d ed. 1980). [Hereinafter Standards ]. Standard 4-5.2 does not provide, however, that failure to document disagreements renders an attorney's representation incompetent per se.²  Moreover, the Supreme Court has expressly stated that guidelines such as the ABA Standards may be consulted in determining what is reasonable, but are not controlling. Strickland, 466 U.S. at 688-89. Stender's failure to document the alleged disagreement regarding this tactical matter did not fall below the standard of a reasonably competent attorney. See id.

In any event, Wilson does not allege a reasonable probability that, but for counsel's unprofessional errors, the result of his trial would have been different. See id. at 694. Because Stender was entitled to decide whether to present an insanity defense, see Stern, 519 F.2d at 525, failure to document any disagreement between him and Wilson concerning that defense was not unfairly prejudicial. See Strickland, 466 U.S. at 694.

Wilson contends that the district court erred by not conducting an evidentiary hearing to determine (1) whether Wilson objected before trial to Stender's withdrawal of notice to pursue an insanity defense and (2) whether Stender's failure to document discussions with Wilson concerning that withdrawal required reversal. Wilson's claims lack merit.

A district court may deny a section 2255 motion without a hearing if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief...." 28 U.S.C. § 2255 (1982); Espinoza, 866 F.2d at 1069. Even when a motion is based on matters entirely outside the record, the court is not required to conduct a hearing if the movant's allegations, when viewed against the record, either do not state a claim for relief or are so patently frivolous as to warrant summary dismissal. United States v. Burrows, No. 86-4264, slip op. 4021, 4025 (9th Cir. Apr. 18, 1989) (per curiam); Watts, 841 F.2d at 277. However, a district court may not summarily dismiss a section 2255 motion unless it can be conclusively determined that the prisoner is entitled to no relief. Burrows, slip op. at 4028.

The district court was not required to hold a hearing on Wilson's claims that Stender failed to consult with him before withdrawing the insanity defense, and failed to document discussions concerning disagreement over that strategy, because Stender was entitled as a matter of strategic judgment to pursue a reasonable alternative defense. See Stern, 519 F.2d at 524-25.³  Accordingly, Wilson does not state a claim for relief requiring a hearing. See Watts, 841 F.2d at 277.

AFFIRMED.