Unpublished Disposition, 900 F.2d 263 (9th Cir. 1990)

MEMORANDUM^** 

SUMMARY

William Elmo Tabb, Jr. appeals pro se the district court's denial of his petition for a writ of habeas corpus. We affirm.

STANDARD OF REVIEW

We review de novo a district court's denial of a habeas corpus petition. United States v. Popoola, 881 F.2d 811, 812 (9th Cir. 1989); Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989).

DISCUSSION

Petitioner contends that trial counsel's performance failed to satisfy the requirements of the sixth amendment. Specifically, petitioner claims counsel was ineffective in failing to: (1) retest blood samples and scientifically test carpet fibers offered to show location of the killing and premeditation; (2) object to admissibility of petitioner's arrest and post-arrest statements as the fruit of an illegal arrest; (3) discuss the option of a manslaughter defense with petitioner; and (4) request manslaughter instructions.

To establish ineffective assistance of counsel, a defendant must show that: (1) counsel's performance was deficient when evaluated under the standard of "reasonableness under prevailing norms," Strickland v. Washington, 466 U.S. 668, 688 (1984); and (2) the deficient performance prejudiced the defendant in that a "reasonable probability" exists that, but for counsel's error, the jury would have had a reasonable doubt as to guilt and hence acquitted the defendant, id. at 694-95. Judicial scrutiny is "highly deferential"; we presume the challenged action might have been sound trial strategy. Id. at 689. At issue ultimately is the fundamental fairness of the trial. Id. at 696. We may reject an ineffectiveness claim on the ground that no prejudice resulted without determining that counsel performed deficiently. Id. at 697.

1. Failure to retest blood samples and to test carpet fibers

Counsel was not ineffective. Even if counsel failed to retest the blood samples, he may have done so for sound strategic purposes, i.e., to remain free to try to impeach the state's criminologist with her failure to test for dog blood and to pursue the defense of alibi. Further, any failure to retest the blood samples and to "scientifically" test the carpet strips was not prejudicial. The blood and carpet samples were merely cumulative among the overwhelming evidence, including pajamas and bedding found near the body, introduced to show that the killing occurred in the bedroom. The prosecution offered the blood splatter stain evidence to show premeditation, but petitioner was acquitted of first-degree murder. Petitioner based his defense upon alibi and insinuation that his son had killed the victim, not upon dispute as to location or method of the killing. The prosecution's expert witness retested the blood samples and testified that it was impossible to confirm the presence of blood in the bedroom by more conclusive tests. Therefore, no reasonable probability exists that retesting the blood samples and "scientifically" testing the carpet samples would have resulted in acquittal.

2. Failure to challenge admissibility of arrest and post-arrest statements

A warrantless arrest upon probable cause outside a residence is valid. See United States v. Santana, 427 U.S. 38, 42 (1976) (warrantless arrest upon probable cause in public place, which includes house threshold and any other area where one lacks expectation of privacy, valid); People v. McCarter, 117 Cal. App. 3d 894, 173 Cal. Rptr. 188, 196 (1981) (dictum).

In Payton v. New York, 445 U.S. 573, 583 (1980), the Court stated that police may not make a warrantless and nonconsensual entry into a home to make a routine felony arrest. In United States v. Gray, 626 F.2d 102, 105 (9th Cir. 1980), this court stated: "The existence of probable cause to arrest, however, does not justify entering a suspect's home without either consent or a warrant." These cases imply that a warrantless arrest in a residence upon probable cause is valid if police enter pursuant to a valid search warrant or consent. See also Augustine v. Doe, 740 F.2d 322, 325 (5th Cir. 1984) (dictum: consent to entry into home or entry pursuant to search warrant assumed sufficient to permit arrest without arrest warrant); United States v. Briley, 726 F.2d 1301, 1303 (8th Cir. 1984) ("valid and voluntary consent may be followed by a warrantless in-home arrest"); United States v. White, 660 F.2d 1178, 1182-83 (7th Cir. 1981) (consent to entry, even if obtained by deceit, can justify subsequent warrantless arrest, at least where entry obtained for investigative purposes and not solely to effect arrest); People v. Cespedes, 191 Cal. App. 3d 768, 236 Cal. Rptr. 649 (1987) (arrest in home without arrest warrant valid where defendant consented to initial entry by police, and entry and arrest simultaneous with both initial entry and commission of crime in officer's presence); McCarter, 173 Cal. Rptr. at 196 (dictum: arrest inside home valid where police enter via valid search warrant).

Probable cause for a warrantless arrest exists if the totality of circumstances of which police have reasonably reliable information would justify a prudent person's belief that the suspect had committed a crime. Beck v. Ohio, 379 U.S. 89, 91 (1964).

Petitioner's arrest was valid even if it occurred in his home because police entered with his consent and pursuant to a valid search warrant. The recovery near the body of pajamas, bedding, and carpet similar to that in the bedroom, plus confirmation of the apparent identity of the carpet strips while examining the bedroom pursuant to the search warrant supplied probable cause for the arrest. That police arrested petitioner only after this confirmation belies his suggestion that they intended to arrest him even before examining the bedroom. Because petitioner's arrest was legal, his arrest and post-arrest statements were admissible and counsel's failure to object to admission was reasonable.

3. Failure to discuss manslaughter option and request manslaughter instructions

To convict a defendant of manslaughter based on heat of passion, a jury must find that the defendant killed while in a heat of passion provoked by the victim. 1 B. Witkin, California Crimes Secs. 330-37 (1963 & Supp.1985).

A defendant who consistently, to counsel, denies involvement in the charged crime and relies on an alibi cannot complain that counsel inadequately investigated a "lesser included offense" defense. See People v. Asgari, 149 Cal. App. 3d 107, 112, 196 Cal. Rptr. 378, 381 (1983) (counsel's failure to prod defendant, convicted of first-degree murder, for different version of facts and to develop such issues as provocation, self-defense, involuntary manslaughter, and diminished capacity did not constitute ineffectiveness, where defendant consistently denied involvement and relied on carefully constructed alibi, and counsel lacked information revealing guilt and presented substantial defense); People v. Haskett, 30 Cal. 3d 841, 853, 640 P.2d 776, 180 Cal. Rptr. 640, 647 (1982) (counsel's failure to pursue diminished capacity defense to murder charge reasonable where counsel decided to rely instead on alibi and defendant had refused psychiatric examination until shortly before trial); see also Strickland, 466 U.S. at 690-91 (" [W]hen a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable.").

Counsel's failure to discuss the manslaughter option with petitioner was reasonable because petitioner consistently denied and still denies involvement in the killing and relied on an alibi, nothing in the record indicates that counsel had information suggesting guilt, and counsel offered a substantial defense.

B. Failure to request manslaughter instructions

A trial court should give a lesser included offense instruction if the evidence would permit a jury to convict on the lesser offense and acquit on the greater. Hopper v. Evans, 456 U.S. 605, 612 (1982); see also People v. Geiger, 35 Cal. 3d 510, 531, 674 P.2d 1303, 199 Cal. Rptr. 45, 58 (1984) (" [related offense] instruction need not be given if the defense theory and evidence reflect a complete denial of culpability as when the defense is alibi....").

Counsel's failure to seek a manslaughter instruction was reasonable. Petitioner was not entitled to a heat-of-passion manslaughter instruction because his testimony, that his argument with the victim had left him only mildly upset, would not support conviction of manslaughter. Counsel may have decided not to request this instruction for the sound tactical purpose of avoiding a defense inconsistent with petitioner's alibi defense.

Counsel's performance was constitutionally adequate. Accordingly, the district court's decision is

AFFIRMED.