Unpublished Disposition, 931 F.2d 898 (9th Cir. 1991)

MEMORANDUM^** 

Morese Wardell Tyler, a California state prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm in part, and reverse and remand in part.

Tyler contends he was denied effective assistance of appellate counsel because counsel failed to raise numerous issues in his direct appeal, including the following: (1) Tyler was arrested and handcuffed without probable cause, (2) Tyler was denied appointment of trial counsel, and (3) Tyler was denied his right to testify at trial. Tyler also contends his appellate counsel was ineffective because he failed to augment the record on direct appeal, before filing his opening brief, to include the transcript of the jury voir dire to show that the prosecution systematically used peremptory challenges to exclude blacks from the jury.

The effectiveness of counsel is a mixed question of law and fact which we review de novo. Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989). To demonstrate ineffective assistance, a defendant must show that counsel's performance was so deficient that counsel "was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687 (1984). Second, the defendant must establish prejudice by showing that, "but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. This two-part standard applies to ineffective assistance claims at all stages of a criminal proceeding. Rodriguez v. Ricketts, 798 F.2d 1250, 1253 n. 5 (9th Cir. 1986), cert. denied, 479 U.S. 1057 (1987).

Because Tyler filed a supplemental brief in state court raising ground one through three, and the California Court of Appeal considered those claims, Tyler cannot establish prejudice resulting from counsel's performance. See Strickland, 466 U.S. at 694. Moreover, Tyler's counsel did augment the record on appeal with a transcript of the jury voir dire. Counsel filed a motion to augment the record after he filed his opening brief; the California Court of Appeal granted his motion almost a year before deciding Tyler's appeal. Thus, Tyler cannot show his counsel was ineffective merely because he sought to augment the record after, rather than before, he filed his opening brief. See Strickland, 466 U.S. at 687.

In his habeas petition, Tyler challenged the prosecution's threat to impeach him with his prior convictions if Tyler testified at trial. Tyler argued that under California law, he was entitled to have his prior convictions excluded. On appeal, Tyler contends the district court erred in determining that his state law challenges to the prosecution's threatened impeachment are not cognizable in a habeas corpus proceeding. This contention lacks merit.

A writ of habeas corpus is available under 28 U.S.C. § 2254 only if a prisoner is held " 'in custody in violation of the Constitution or laws or treaties of the United States.' " Engle v. Isaac, 456 U.S. 107, 119 (1982) (quoting 28 U.S.C. § 2254). A writ of habeas corpus "is unavailable for alleged error in the interpretation or application of state law." Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle, 456 U.S. at 119), cert. denied, 478 U.S. 1021 (1986). When a state prisoner has failed to allege a deprivation of a federal right, section 2254 does not apply. Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983). Because Tyler alleges a violation of state law, the district court did not err in determining his claim is not cognizable in federal habeas corpus.

Tyler contends he was denied a fair trial by the state court's failure to appoint co-counsel despite his timely request, or its failure to secure a knowing and intelligent waiver of his right to trial counsel. If Tyler were claiming a constitutional right to self-representation with the appointment of co-counsel, his claim would have no merit. See McKaskle v. Wiggins, 465 U.S. 168, 183 (1984); Adams v. Carroll, 875 F.2d 1441, 1445 (9th Cir. 1989). Tyler argues, however, that what he unequivocally requested in his two motions for "appointment of co-counsel," was the appointment of counsel to represent him at his second trial. Tyler, however, wanted to maintain his pro per status regarding matters he had pending on appeal in California state courts. Tyler argues that it would have been clear from reading his motions, despite being improperly labeled as a request for "co-counsel", that he believed he could not adequately represent himself at trial and was requesting that counsel be appointed to represent him. The district court record does not contain the motions Tyler made before the state court. Thus, we remand to the district court to determine whether Tyler requested, in his motions, to be represented by counsel at his second criminal trial.

We also reverse the district court's dismissal of Tyler's fourth amendment claim for reconsideration after its determination of Tyler's sixth amendment claim.

AFFIRMED IN PART, and REVERSED AND REMANDED IN PART.