Unpublished Disposition, 924 F.2d 1062 (9th Cir. 1987)

MEMORANDUM^** 

On February 20, 1987, Petitioner-Appellant Gilbert Navarro Galaz was convicted in an Arizona trial court of two counts of aggravated assault. The charges arose from an altercation outside a bar between Galaz and a bar patron in which the patron was stabbed and seriously injured. The trial court sentenced Galaz to life imprisonment and ordered him to pay restitution to the victim.

On July 24, 1987, Galaz filed a petition before the trial court for post-conviction relief. He argued in part that the trial court erred in allowing the prosecution to impeach him with allegedly involuntary statements he made after his arrest, and that his counsel was ineffective because she did not challenge the voluntariness of the statements.

The trial court held a hearing on the petition at which Galaz' former defense counsel testified. Counsel stated she did not challenge the statements because she did not believe they were involuntary, because she believed they would be admitted, and because she wanted to use the statements to her client's advantage. The trial court found that defense counsel's decision not to object to the statements or request a voluntariness hearing was a tactical one, concluded that her assistance was not ineffective, and denied the motion.

After filing a motion for reconsideration, which the trial court also denied, Galaz filed a petition for review in the Arizona Supreme Court. The Arizona Supreme Court determined that there was no evidence that the statements were involuntary or that Galaz received ineffective assistance of counsel.

Galaz then filed a petition for writ of habeus corpus, claiming that the trial court committed fundamental error in allowing the allegedly involuntary statements to be used to impeach him at trial and that he received ineffective assistance of counsel because his attorney failed to object to the use of the statements. The district court concluded that the statements were not involuntary, and that he did not receive ineffective assistance of counsel. Galaz timely appealed. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.

Although Galaz now argues his post-arrest statements were involuntary, he did not at any time before or during trial either request a hearing on the voluntariness of the statements, or object to their use.

Under Arizona law, a defendant is entitled to a hearing to determine the voluntariness of his statements. See State v. Ferguson, 119 Ariz. 200 (1978); State v. Wargo, 140 Ariz. 70 (Ct.App.1984). If a defendant fails to timely request a voluntariness hearing, however, he waives his right to such a hearing. Id. Moreover, the Due Process Clause of the Fourteenth Amendment does not require a hearing to determine the voluntariness of a defendant's post-arrest statements, absent a request by the defendant. See Wainwright v. Sykes, 433 U.S. 72, 86-87, reh'g denied, 434 U.S. 880 (1977).

In any case, although Galaz now maintains his statements were involuntary due to his inebriation and emotional state following his arrest, he has failed to offer any evidence of coercion, undue influence, or overreaching by the police at the time he made the statements. We therefore conclude that the statements were not "involuntary" within the meaning of the Due Process Clause. See Colorado v. Connelly, 479 U.S. 157, 163-67 (1986).

In order to establish ineffective assistance of counsel, Galaz must show (1) that his counsel's representation fell below an objective standard of reasonableness, and (2) that he was prejudiced by his counsel's performance. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). He has failed to do so.

Galaz' defense counsel testified that she believed the statements would be admitted into evidence, and that portions of the statements would actually benefit her client if presented. The fact that the prosecution characterized the statements as "exculpatory" and moved to preclude their introduction before trial supports defense counsel's opinion. Counsel's decision not to challenge the use of the statements was thus a sound tactical decision that does not fall below an objective standard of reasonableness.

Finally, because there is no evidence that the statements were in fact involuntary, counsel's decision not to request a voluntariness hearing or object to the use of the statements did not prejudice the defendant.

AFFIRMED.