Unpublished Disposition, 917 F.2d 28 (9th Cir. 1990)

MEMORANDUM^** 

SUMMARY

State prisoner Umtuch appeals pro se the district court's denial of his habeas corpus petition alleging ineffective assistance of counsel at trial. We affirm the district court.

FACTS

Umtuch abducted the victim from a supermarket parking lot, drove her to a deserted area, and beat her severely as he twice attempted to rape her. After the rape attempts, Umtuch and the victim went to a Burger King drive-through window. Umtuch alleges his trial counsel was delinquent in failing to locate the Burger King employee who served them and could have testified to the victim's condition. Umtuch then left the victim at a gas station, where he claims they were observed by a cab driver. He argues his trial counsel should have located this cab driver, who could have corroborated Umtuch's story that the victim was unharmed when he left her.

Umtuch claims he was ineffectively assisted by trial counsel, who allegedly (1) failed to locate the two witnesses, (2) failed to raise relevant issues during closing argument, (3) gave privileged information to the district attorney, and (4) forced Umtuch to perjure himself.

INEFFECTIVE ASSISTANCE OF COUNSEL

Under the two-prong test of Strickland v. Washington, 466 U.S. 668 (1984), Umtuch must show (1) his attorney's performance was outside the wide range of reasonable assistance, and (2) the jury would have acquitted him without the asserted errors of his attorney. He argues that his counsel erred in not locating two potential witnesses and in not arguing inconsistencies in the victim's testimony during closing argument.

Umtuch did not make the necessary showing under either prong of Strickland. His attorney's choice not to pursue the missing witnesses more aggressively was based on his judgment that their testimony would be of little value to Umtuch's defense. Strategic choices of this nature are within the bounds of reasonable professional judgment. Secondly, Umtuch has made no showing he would have been acquitted but for counsel's omissions. Since he satisfied neither prong of Strickland, the district court properly granted summary judgment on this claim.

We do not reach the issue of his attorney's failure to raise the victim's inconsistencies during closing argument because Umtuch did not raise this issue before the district court. In the absence of special factors, we will not reach an issue not before the district court. Jovanich v. United States, 813 F.2d 1035, 1037 (9th Cir. 1987).

OTHER CLAIMS

Umtuch also alleged his attorney gave privileged information to the district attorney before trial, and forced Umtuch to perjure himself at trial. Umtuch did not pursue either of these claims in his appeal from denial of post-conviction relief. These claims are therefore barred by procedural default unless Umtuch can show both cause for, and prejudice from, the default. Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Murray v. Carrier, 477 U.S. 478 (1986).

Although it is unclear from the record whether Umtuch, given the opportunity, might have been able to argue that there was cause for failure to raise these claims in the state appellate court, it is clear that he was not prejudiced by such failure. Both claims are directly contrary to the factual findings of the state trial court. Had Umtuch argued the claims before the state appellate court, or been allowed to reargue the claim in federal court, the result would have been the same: Umtuch's claims would have been rejected out of deference to he trial court's factual findings. Thus, Umtuch suffered no prejudice and the judgment appealed from is

AFFIRMED.