Unpublished Disposition, 879 F.2d 866 (9th Cir. 1983)

MEMORANDUM^* 

Appellant Bruce Treadway timely appeals from the dismissal of his petition for writ of habeas corpus. He contends that he was erroneously denied an evidentiary hearing in which to present his claim of ineffective assistance of counsel. He also claims that the district court erred in rejecting his various assertions of due process violations. We affirm.

BACKGROUND

Appellant was convicted in California state court of second-degree murder, in violation of Cal.Pen.Code Sec. 187 (West 1988), and of using a firearm during the commission of a felony, in violation of Cal.Pen.Code Sec. 12022.5 (West 1982 & Supp.1989). The jury found that on the evening of October 17, 1982, Appellant shot and killed fourteen-year-old Lathome Moore as he and his companion, Derrick Jackson, were attempting to steal Appellant's motorcycle from the vicinity of Appellant's residence. The jury verdict was consistent with Jackson's testimony that Appellant had pursued the two down an alley way, yelling, "freeze niggers," and that, even after they abandoned the stolen motorcycle, he had fired several shots--two of which struck and killed Moore. Also consistent with the verdict was the testimony of another witness, Anthony Clark, who testified that he had heard several shots that evening and shortly afterward saw Appellant pushing his motorcycle toward his home. The jury apparently disbelieved Appellant's own testimony that he had initially fired a warning shot to frighten the thieves, and only aimed and fired his weapon at them in response to what he believed was their return gunfire. The jury also found unavailing Appellant's testimony that he did not realize he had struck and killed Moore, and since he retrieved the motorcycle, he did not call the police to report any crime.

The California Court of Appeals affirmed the judgment, and Appellant's petitions for hearing and for writ of habeas corpus, both filed in the California Supreme Court, were denied. Having exhausted his state remedies, Appellant then sought relief in federal district court under the authority of 28 U.S.C. § 2254 (1982). He contended that his conviction violated his constitutional rights to due process and the effective assistance of counsel. The district court referred the matter to a magistrate for argument and recommendation.

Appellant argued that he was denied the effective assistance of counsel because he and his attorney had irreconcilable differences that became most pronounced after Appellant approached his counsel's superiors in an effort to have him replaced. During the proceedings of February 22, 1983, according to Appellant, his counsel went so far as to tell him, "you dirty backstabber, I'm going to put you away so far they'll have to mail light to you." And shortly after that, counsel explained to the court that he was arguing with his client because, in his words, "I'm having trouble with my guilty defendant." These proceedings were not transcribed because they occurred in the context of an informal proceeding. Nonetheless, the magistrate recommended a conclusion that the omission of a transcript itself was not a constitutional violation, reasoning that Appellant had not shown a "colorable need" for a complete transcript. He reasoned further that whatever the content of the conversations that occurred between counsel and client on February 22, the transcriptions of February 23 revealed that the dispute between the two began because counsel did not have sufficient time to interview thirteen witnesses proposed by Appellant--a problem that was resolved by the court granting a continuance. Because Appellant did not complain of his attorney's performance after that time, and because the record revealed that his attorney was sufficiently prepared by the time of trial, the magistrate recommended a conclusion that Appellant was not denied the effective assistance of counsel.

The magistrate also recommended rejecting Appellant's various assertions of due process violations, all of which are related to the prosecution's failure to take note of Cal.Pen.Code Sec. 197(4) (West 1988). Section 197(4) allows as a defense to criminal homicide the justification of stopping a fleeing dangerous felon. The magistrate reasoned that Appellant was not selectively prosecuted, despite Appellant's assertions, because, unlike the off-duty police officer involved in the case on which Appellant relied, the Appellant's retrieval of his motorcycle without rendering any aid to the victim or waiting for authorities to arrive at the scene belied his assertion of absence of malice. The magistrate found equally unpersuasive Appellant's argument that because the justification defense of section 197(4) was inconsistent with the definition of malice in Cal.Pen.Code Sec. 187 (West 1988), he was convicted under an unconstitutionally vague statute. The magistrate reasoned that the definition of malice in section 187 was explicit and that a person of average intelligence could understand its proscriptions.

Finally, the magistrate recommended concluding against Appellant's argument that the evidence was sufficient to sustain only a verdict of involuntary manslaughter and not second-degree murder. Construing the evidence in a light most favorable to the verdict, the magistrate concluded that a jury could rationally reject Appellant's testimony that he fired his weapon in self defense and that he did not render any assistance to the victim because he was unaware that the victim had been hit. The magistrate thus found Appellant's racial epithet, his failure even to attempt to apprehend the thieves by use of nonviolent force, and his concealment of his weapon and motorcycle after the crime, sufficient to sustain the jury's verdict that he had acted with malice.

Over Appellant's objections, the district court adopted all the magistrate's recommendations, adding that Appellant had failed to show selective enforcement of the sort required in United States v. Bustamante, 805 F.2d 201 (6th Cir. 1986), and United States v. Scott, 521 F.2d 1188 (9th Cir. 1975), cert. denied, 424 U.S. 955 (1976). The district court therefore dismissed Appellant's petition, and this timely appeal followed. Appellate counsel was appointed for Appellant and, in addition to the appeal of the claims asserted by Appellant below, now asserts that Appellant should have been permitted an evidentiary hearing to present his ineffective assistance of counsel claim. Appellate counsel also asserts that Appellant was denied his right to a fair trial because the jury should have been instructed on the justification defense allowed by section 197(4). We have jurisdiction under 28 U.S.C. § 2253 (1982).

DISCUSSION

The denial of a petition for writ of habeas corpus is reviewed de novo. Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir. 1986), cert. denied, 108 S. Ct. 198 (1987). We must consider whether Appellant is entitled to relief because his state conviction was in violation of the Constitution or the laws of the United States. Engle v. Isaac, 456 U.S. 107, 119 (1982). We conclude that it was not.

Appellant claims that the state court's denial of his motion for substitution of appointed counsel deprived him of his constitutional right to the effective assistance of counsel. This court has stated before that a client-attorney relationship that is marked by "quarrels, bad language, threats, and counter-threats" may become so disruptive that it deprives a defendant of the effective assistance of any counsel whatsoever. United States v. Williams, 594 F.2d 1258, 1260 (9th Cir. 1979); see also Brown v. Craven, 424 F.2d 1166, 1170 (9th Cir. 1970). But not every alleged disagreement between client and counsel rises to a constitutional violation; whether any particular disagreement is irreconcilable is largely a factual inquiry. See United States v. Jones, 512 F.2d 347, 350 (9th Cir. 1975).

Appellant argues that the district court should have conducted an evidentiary hearing to resolve this factual question, especially since the missing record of February 22 would buttress his claim that he and his counsel were incompatible. This argument ignores the fact that the state court gave Appellant's claim thorough consideration the next day. Although given an opportunity, Appellant failed to explain why he and his attorney could not get along. The only reason given for Appellant's dissatisfaction was that his attorney had not devoted enough time to his case. Had we been in the state court's position, we may have substituted counsel anyway simply because the friction was caused by counsel's excessive workload. Nevertheless, the state court chose not to substitute counsel, but instead granted a continuance in order to allow counsel additional time to prepare. Although not stated expressly, the state court's decision to grant a continuance, combined with Appellant's failure to allege any further instances of incompatibility, supports the factual conclusion that the parties' differences were reconcilable. See Brown, 424 F.2d at 1170 (state court erred because it did not "take the necessary time and conduct such necessary inquiry as might have eased Brown's dissatisfaction, distrust, and concern"). This determination obviates any need for an evidentiary hearing in the context of a habeas corpus proceeding. See Townsend v. Sain, 372 U.S. 293, 314 (1963) ("If the state court has decided the merits of the claim but has made no express findings, it may still be possible for the District Court to reconstruct the findings of the state trier of fact, either because his view of the facts is plain from his opinion or because of other indicia.").

Appellant also argues that he was denied the effective assistance of counsel because his attorney failed to present any witnesses or to have evidence of criminal activity around his home admitted into evidence. To succeed on such a claim, Appellant would have to show that his "counsel's performance was deficient" and that "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984). We seriously doubt that Appellant's counsel performed deficiently, especially given, according to Appellant's own assertions, the favorable plea bargain arrangement that his counsel secured but that he rejected. But even supposing the deficiency of his counsel's performance at trial, Appellant has not asserted how the unspecified witnesses would have aided his defense or how any evidence of criminal activity around his home, even if relevant, would have influenced the jury in finding that he had not acted with malice. Since his allegations do not satisfy the prejudice requirement, Appellant was not denied the effective assistance of counsel. An evidentiary hearing was not needed to conclude as much. Hill v. Lockhart, 474 U.S. 52, 60 (1985).

None of Appellant's bases for arguing that his state prosecution violated his right to due process is persuasive.¹  To begin, Appellant cannot make out a claim that he was denied due process because he was discriminatorily singled out for prosecution under section 187. To prevail in this assertion, Appellant must show at least a prima facie case that "others similarly situated generally have not been prosecuted for conduct similar to that for which he was prosecuted" and "that his selection was based on an impermissible ground such as race, religion or his exercise of his first amendment right to free speech." United States v. Scott, 521 F.2d 1188, 1195 (9th Cir. 1975), cert. denied, 424 U.S. 955 (1976); accord United States v. Bustamante, 805 F.2d 201, 202 (6th Cir. 1986). Even supposing, contrary to the magistrate's conclusion, that the case of People v. Martin, 168 Cal. App. 3d 1111, 214 Cal. Rptr. 873 (1985), supports Appellant's argument that others are generally not prosecuted for conduct similar to his own, he has failed even to allege that his prosecution was motivated by impermissible grounds.

Equally unpersuasive is Appellant's argument that he was denied due process by being convicted of violating an unconstitutionally vague statute. "A statute is not impermissibly indefinite if it gives a person of ordinary intelligence fair notice that his contemplated activity is forbidden." United States v. Spencer, 839 F.2d 1341, 1343-44 (9th Cir.), cert. denied, 108 S. Ct. 2908 (1988). Section 187 defines the commonlaw term, "malice," in explicit terms and, as noted by the magistrate, is similar to many such homicide statutes that only reiterate the common-law meaning of murder. That the statute is derived from such a common-law term is useful in deciding whether it is impermissibly vague. See id. at 1343. Here, there is no reason to believe that a reasonably intelligent person would not be able to understand the proscriptions of the murder statute. Contrary to Appellant's assertion, this conclusion is not altered simply because section 197(4) specifically excludes from section 187 any killings that are justified because they occur during the arrest of a dangerous felon.

Appellant's court-appointed appellate counsel also asserts that Appellant was denied his due process rights because the jury was not properly instructed on the defense that Appellant may have been justified in killing a dangerous felon.

A defendant is entitled to a jury instruction on "his theory of the case if it is supported by law and has some foundation in the evidence." United States v. Echeverry, 759 F.2d 1451, 1455 (9th Cir. 1985) (Echeverry). The district court, however, may refuse a proposed instruction so long as the instructions given, viewed as a whole, cover that theory.

United States v. Makhlouta, 790 F.2d 1400, 1405 (9th Cir. 1986). The instructions given more than adequately covered the legal principles that Appellant's trial counsel proposed. For example, the record indicates that the jury was instructed that homicide "is justifiable and not unlawful when necessarily committed in attempting, by lawful ways and means: To apprehend and arrest and detain any person who has committed a felony," but that such arrest is unlawful if one uses "more force and restraint than is reasonably necessary for his arrest and detention in the circumstances with which he was confronted." Since the exact formulation of a jury instruction is left to a court's discretion, see Echeverry, 759 F.2d at 1455, Appellant was not deprived of his rights to due process even though the instructions ultimately given were not his own.

Finally, Appellant argues that he was denied due process because the evidence was insufficient to convict him of violating section 187. His argument lacks merit. Construing the evidence in a light most favorable to the prosecution, a rational trier of fact could conclude beyond a reasonable doubt that Appellant acted with malice. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). He yelled a racial epithet; he fired his gun even though the thieves abandoned the stolen motorcycle; he did not attempt to apprehend the individuals by nonviolent means; he made no effort to assist the victim after shooting him; and he hid his gun and motorcycle apparently in an effort to avoid arrest and prosecution. These events were inconsistent with Appellant's version of the facts, which the jury was not obligated to believe. Appellant's conviction for violating section 187 is supported by sufficient evidence.

CONCLUSION

The district court's denial of Appellant's petition for writ of habeas corpus is affirmed.

AFFIRMED.