Unpublished Disposition, 880 F.2d 1323 (9th Cir. 1975)

MEMORANDUM^** 

FACTS AND PROCEEDINGS

John Robert Myers ("Myers" or "appellant"), a prisoner at the Arizona State Prison at Florence, Arizona, filed this pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court ordered that the petition be served on appellees and that they answer the petition and submit relevant court transcripts, orders, judgment, and appellate briefs.

Appellee filed an answer with memorandum and attachments asking that the petition be denied. Appellant subsequently filed a motion for discovery requesting production of pretrial motions, trial transcripts, post-trial transcripts, and other documents pertaining to his conviction in order for him to file a meaningful reply.

The magistrate to whom the case was assigned for review recommended denying appellant's motion and petition. The district court did so, and appellant timely appealed the denial of his habeas petition.

On the night of September 30, 1975, Martin Jorgenson left a bar on East McDowell Road. After he got into his car, a man later identified as appellant, approached the driver's window, pointed a sawed-off shotgun at him, and made him move over while Jerry Dean Williams also got into Jorgenson's car. At the same time, Steven Hously came to the passenger's window and demanded money. Hously ran away with the money given to him by Jorgenson. Appellant then drove Jorgenson's car around the neighborhood for a short time looking for Hously and refused to allow Jorgenson to leave the car. Jorgenson later managed to jump out of the car to escape. He then contacted the police.

After Jorgenson left the car, appellant and Williams drove around the Phoenix area and eventually went to a U-Totem store. David Ryan was preparing to close the U-Totem store when Myers approached him and asked for cigarettes. While Ryan was standing at the cash register, he was shot and critically injured by Myers.

Another occupant of appellant's car, Jerry Dean Williams, testified that when Myers returned to the car from the U-Totem store he was carrying money and a shotgun. Williams also heard a loud bang while Myers was out of the car. When Myers returned to the car, he told Williams that he just "blew someone away." A Phoenix police forensics expert testified that an unused shell in the shotgun found in the vehicle stolen from Jorgenson was the same gauge and size as the shell which injured Ryan.

Appellant was found guilty of armed robbery and attempted murder. For the armed robbery charge, appellant was sentenced to a term of not less than fifty years, nor more than life. For the attempted murder charge, he was sentenced to a term of not less than thirty nor more than fifty years. The sentences were to run concurrently.

STANDARD OF REVIEW

The decision whether to grant or deny a habeas corpus petition is reviewed de novo. Chatman v. Marquez, 754 F.2d 1531, 1533-34 (9th Cir.), cert. denied, 106 S. Ct. 124 (1985).

DISCUSSION

Myers alleges six reasons this court should grant his habeas petition:

(1) The pretrial identification was tainted;

(2) The trial court erred in admitting testimony as to events concerning Martin Jorgenson;

(3) The non-disclosure of Jerry Williams' juvenile record denied him his constitutional right to effective cross-examination;

(4) His sentence amounts to cruel and unusual punishment;

(5) The state knowingly used perjured testimony; and

(6) He was denied effective assistance of counsel.

Myers, who was represented by counsel at the initial trial, alleges that he was prejudiced by David Ryan's identification of him at the evidentiary hearing. He alleges that this identification tainted the in-court identification. David Ryan had failed to identify Myers from photographs provided him by police prior to the trial and he was also unable to select Myers from a physical line-up. However, at the time of trial, the court held an evidentiary hearing in camera on the issue of in-court identification. Ryan identified the appellant at the hearing held out of the presence of the jury. The appellant was dressed in non-jail attire and was present at the hearing in the presence of and with approval of defense counsel. At the evidentiary hearing, Ryan testified that at the time of the robbery and attempted murder, he had observed Myers' face for about thirty seconds in good light on one occasion and had two subsequent opportunities to observe his face. Ryan further stated that he had no doubts that defendant was the person who had robbed him.

The trial judge thereafter allowed Ryan to identify Myers at trial and the Arizona Supreme Court held that the identification at trial and at the pretrial hearing was not prejudicial. State v. Myers, 117 Ariz. 79, 570 P.2d 1252, 1257 (1977) (en banc). Our review in this habeas appeal is limited by 28 U.S.C. § 2254(d) which provides that the state's determination of facts "shall be presumed to be correct." Id. See Ford v. Wainwright, --- U.S. ----, 106 S. Ct. 2595, 2602 (1986); Brothers v. Dowdle, 817 F.2d 1388, 1389 (9th Cir. 1987).

The possible prejudice involved in Myers' pretrial identification is a mixed question of law and fact.¹  This court has said in one habeas case involving a mixed question that " [w]hen an issue involves credibility of witnesses and an evaluation of demeanor, there are compelling and familiar justifications for leaving the process of applying law to fact to the trial court and according its determination presumptive weight." Evans v. Raines, 800 F.2d 884, 886 (9th Cir. 1986) (citation omitted). Here, the state trial judge was required to weigh the credibility of a witness and to evaluate his demeanor. He was in the best position to determine whether Ryan's identification of Myers was genuine. His decision to allow an in-court identification of appellant, after the pretrial identification at the evidentiary hearing, must be presumed to be correct. Appellant has provided no evidence overcoming that presumption.

Myers alleges that the testimony of Martin Jorgenson involved another crime and was used by the state to prejudice him and to shift the burden of proof.

Arizona allows evidence of other crimes to be admitted at trial when offered to show identity or to complete the story. 17A A.R.S. Rules of Evid., Rule 404(b); State v. Mincey, 141 Ariz. 425, 687 P.2d 1180 (en banc), cert. denied, 469 U.S. 1040 (1984). The evidence of the crime perpetrated on Jorgenson was so closely connected to the events that occurred at the U-Totem store and to Ryan that it would certainly assist in providing trial jurors with a complete picture of the events that transpired on that date.

Therefore, the testimony regarding crimes against Jorgenson was properly admitted to provide the jury with a complete story of the events surrounding the night of September 30, 1975.

3. Failure to Disclose Williams' Juvenile Record

Myers alleges that he was denied his constitutional right to cross-examination when the court denied his request to disclose Williams' juvenile record. A fair trial requires that the accused be able to cross-examine effectively the witnesses against him. If the withholding of a prosecution witness's juvenile record makes it impossible for the accused to cross-examine the witness effectively, the state's policy of protecting juvenile offenders by refusing to disclose their records except in juvenile proceedings must give way to the accused's constitutional right to meaningful confrontation of witnesses. See Davis v. Alaska, 415 U.S. 308, 318-19 (1974).

A review of the transcript shows that Myers did present much evidence casting doubt on Williams' credibility and Myers' counsel brought to the attention of the jury the fact that Williams had several previous dealings with juvenile authorities and was being held at the Arizona Youth Center. Thus, Myers was able to attack Williams' credibility by examining his possible interest in testifying against Myers. Appellant was not hampered in his ability to impeach Williams' credibility or truthfulness because he lacked Williams' juvenile record. Myers' cross-examination of Williams was more than adequate cross-examination of the witness against him. Burr v. Sullivan, 618 F.2d 583, 585-86 (9th Cir. 1980).

Myers alleges that the sentence imposed by the trial judge constitutes cruel and unusual punishment. The trial court noted at the time of sentencing that of all the people he had sentenced, Myers "classifies as one of the top three more dangerous, potentially violent--not potentially, he is violent, potentially dangerous individuals that I've seen."

Myers fails to allege that the sentences imposed are not within the statutory limitations imposed by the Arizona legislature. The Arizona Supreme Court found that both of the sentences imposed by the trial court are within the statutory limitations. Ariz.Rev.Stat. Secs. 13-110, 13-453, and 13-643; State v. Myers, 117 Ariz. at ----, 570 P.2d at 1264. Since they are within the guidelines, we cannot presume that Myers' sentences were unconstitutional. See United States v. Klein, 860 F.2d 1489 (9th Cir. 1988) (establishing factors useful in determining cruel and unusual punishment).

Myers alleges that the state used perjured testimony of Jerry Dean Williams. It appears that this issue was not raised at the trial court and is therefore waived by Myers unless he shows cause and prejudice. Engle v. Isaac, 456 U.S. 107 (1982). Since Myers has failed to show cause and prejudice, he is precluded from raising this claim in his petition.

To prove ineffective assistance of counsel, Myers must demonstrate that counsel's performance fell below an objective standard of reasonableness and that he was prejudiced thereby; that but for counsel's errors there is a reasonable probability that the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668 (1984); United States v. Layton, 855 F.2d 1388, 1416 (9th Cir. 1988). We will not second-guess the strategy of counsel. Myers has shown no conduct of counsel which fell below the standard of reasonableness. See Layton, 855 F.2d at 1420. Thus, Myers' counsel cannot be deemed ineffective.

AFFIRMED.