Unpublished Disposition, 879 F.2d 866 (9th Cir. 1989)

MEMORANDUM^** 

Robert A. Williams appeals the district court's denial of his habeas corpus petition. Williams was convicted in California state court of thirty-five counts of rape and rape related offenses. Williams contended in his habeas corpus petition that peremptory challenges were used at his trial to improperly exclude potential black jurors, that he did not receive effective assistance of counsel in his state court appeal, and that the state trial court made erroneous evidentiary rulings. The district court held that Williams's discriminatory jury selection claim was barred by procedural default and rejected Williams's remaining contentions on the merits. We affirm. We review de novo a district court's grant or denial of habeas corpus relief. McKenzie v. Risley, 842 F.2d 1525, 1531 (9th Cir. 1988) (en banc), cert. denied, 109 S. Ct. 250 (1988).

Williams did not raise his discriminatory jury selection claim in his direct appeal to the California Court of Appeal and California Supreme Court. Under California law, contentions which could have been raised during direct appeal, but were not, generally cannot be renewed in a petition for habeas corpus. In re Terry, 4 Cal. 3d 911, 95 Cal. Rptr. 31, 484 P.2d 1375, 1382 n. 1, cert. dismissed, 404 U.S. 980 (1971). Williams attempted to raise this issue in petitions for a writ of habeas corpus in California appellate courts. The petitions were denied. Because Williams's claims were defaulted in state court, they will not be considered in federal habeas proceedings unless Williams can demonstrate cause for the default and actual prejudice. See Engle v. Isaac, 456 U.S. 107, 129 (1982).

Williams cannot show cause for his default. Whether there is cause for procedural default will "ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1985). Cause exists when the claim is novel in that it had "no reasonable basis in existing law" at the time of the procedural default. Reed v. Ross, 468 U.S. 1, 15 (1984). But "the question is not whether subsequent legal developments have made counsel's task easier, but whether at the time of the default the claim was 'available' at all." Smith v. Murray, 477 U.S. 527, 537 (1985). Although Batson v. Kentucky, 476 U.S. 79 (1986) (holding that systematic exclusion of blacks from petit juries is unconstitutional), was not decided until after Williams filed his initial appeal, this does not demonstrate that his claim was novel. Mere failure to anticipate a change in the law does not constitute cause for procedural default. Engle, 456 U.S. at 134. Williams's claim was available, in the sense that it had been perceived and litigated, long before his appeal was filed. See, e.g., Swain v. Alabama, 380 U.S. 202 (1965); People v. Wheeler, 22 Cal.3d, 148 Cal. Rptr. 890, 583 P.2d 748 (1978).

Ineffective assistance of counsel can also demonstrate sufficient cause to excuse procedural default. Murray, 477 U.S. at 488. An ineffective assistance of counsel claim has two components.

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense.

Strickland v. Washington, 466 U.S. 668, 687 (1984). Williams's counsel's failure to raise the improper jury selection claim on appeal was not ineffective assistance. Williams's counsel considered raising the issue and made a tactical decision not to do so. This tactical decision did not amount to ineffective assistance of counsel simply because in hindsight a different decision might have been better. See Bashor v. Risley, 730 F.2d 1228, 1241 (9th Cir.), cert. denied, 469 U.S. 838 (1984). Because the decision was not outside the wide parameters of reasonable professional assistance, See Strickland, 466 U.S. at 688, Williams was not deprived of effective assistance of counsel.

Williams makes a separate claim for relief based on his contention that he was deprived of effective assistance of counsel on appeal. For the same reasons that we reject the claimed ineffective assistance of counsel as cause for procedural default, we reject it as an independent claim for relief.

Williams also contends that he was denied due process by the trial court's decisions to admit evidence of a prior sexual assault and to exclude expert testimony on eyewitness identification. To amount to a deprivation of due process, an evidentiary issue must have been so prejudicial as to render the trial fundamentally unfair. Kealohapauole v. Shimoda, 800 F.2d 1463 (9th Cir. 1986), cert. denied, 479 U.S. 1068 (1987). The prior assault evidence did not deprive Williams of a fair trial. The case against Williams rested primarily on the credibility of the identifications of Williams by the victims. The prior assault testimony had little bearing on this credibility determination.

The exclusion of expert testimony about eyewitness identification was also inconsequential. All of the victims positively identified Williams as their assailant. All had sufficient time to view their assailant. There was corroboration of the eyewitness testimony; several victims had bitten their assailant, and Williams bore bite marks when arrested. The court instructed the jury on factors which might affect the accuracy of identification testimony. The exclusion of this evidence did not deprive Williams of his right to a fair trial.

AFFIRMED.