Unpublished Disposition, 936 F.2d 579 (9th Cir. 1984)

MEMORANDUM^** 

Terry Spears petitioned for habeas corpus on the ground that he was not afforded effective assistance of counsel at his trial and that the trial court erred in refusing his request for substitute counsel. The district court denied the petition and we affirm.

* Spears argues that his conviction was tainted by ineffective assistance of counsel and that the record of the state court hearing on his request for substitution of counsel was not sufficient to enable the district court adequately to review his claim. He claims the district court should have held an evidentiary hearing to resolve his claim.

In habeas proceedings under 28 U.S.C. § 2254, an evidentiary hearing is required when: (1) the petitioner's allegations, if proved, would establish the right to relief (prima facie case); and (2) the state court trier of fact has not, after a full and fair hearing, reliably found the relevant facts.

Van Pilon v. Reed, 799 F.2d 1332, 1338 (9th Cir. 1986) (citing Townsend v. Sain, 372 U.S. 293, 312-13 (1963)).

In order for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that his counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). These determinations must be made in light of all the circumstances of the case and the totality of the evidence before the judge or jury. Id. at 690, 695. This appeal may be resolved on the issue of prejudice.

A petitioner claiming ineffective assistance of counsel must "affirmatively prove prejudice." Strickland, 466 U.S. at 693. In order to show that his counsel's deficient performance prejudiced his defense, the petitioner must show that there is a reasonable probability--"a probability sufficient to undermine confidence in the outcome"--that, "but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695.

To prove prejudice, a petitioner must show "not only that the testimony of the uncalled witness would have been favorable, but also that those witnesses would have testified at trial." Lawrence v. Armontrout, 900 F.2d 127, 130-31 (8th Cir. 1990) (reversing and remanding for a district court hearing to give the defendant the opportunity to demonstrate that the uncalled alibi witnesses would have testified if asked, and that their testimony would have supported the alibi); see also Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985) (petitioner failed to show prejudice because he did not "give any indication of who the uninterviewed witnesses might be, or the subject matter of their potential testimony, or what defense they might tend to establish"). "Under usual circumstances, we would expect that such information would be presented to the habeas court through the testimony of the potential witnesses.... Therefore, if the potential witnesses are not called, it is incumbent on the petitioner to explain their absence and to demonstrate, with some precision, the content of the testimony they would have given at trial." United States ex re. Cross v. DeRobertis, 811 F.2d 1008, 1016 (7th Cir. 1987).

Spears' only attempt to show prejudice is through the declaration of Clifton Garrett, who Spears alleges is the "Cliff Barnes" he identified to his counsel. Garrett swore:

On or about October 9, 1984, I gave Terry Spears a ride to the San Francisco County Jail to visit a femals [sic ] friend, Paulette Brown.

We arrived between 2 and 2:20 p.m. on that date; I waited during Mr. Spear's visit until he returned to may automobile. The time was between 3:15 and 3:45 pm. I remember this because I had an appointment at 4:30 p.m. I then drove Mr. Spears to 3rd & La Salle streets in San Francisco, at which time we departed company.

E.R. 23. This statement does not establish that Spears was prejudiced by not having Garrett testify at trial, especially in light of the strength of the evidence presented against Spears at trial.¹  See Coleman v. Brown, 802 F.2d 1227, 1234 (10th Cir. 1986), cert. denied, 482 U.S. 909 (1987) (a court should weigh the strength of the allegedly omitted alibi evidence against the evidence against defendant presented at trial); see also Jones v. Smith, 772 F.2d 668, 674 (11th Cir. 1985) (failure to call a witness not ineffective assistance where the witness' testimony would confirm that the witness had been with the defendant on the night before the murder but not at the precise time the murder occurred), cert. denied, 474 U.S. 1073 (1986); but see United States v. Yancey, 827 F.2d 83, 90 (7th Cir. 1987) (single affidavit, of asserted witness, that tended to support defendant's defense, "while clearly not the comprehensive showing demanded by Cross, ... does raise an issue sufficient to require a hearing below on defendant's ineffective assistance of counsel claim"), cert. denied, 485 U.S. 967 (1988).

Because Spears has not shown that he was prejudiced by the failure to call alibi witnesses, he could not have shown ineffective assistance of counsel, even if the district court had held an evidentiary hearing.

II

Spears argues that the district court should also have held an evidentiary hearing before denying his claim that the state trial court improperly denied his request for substitution of counsel. We consider three factors when reviewing the denial of a motion to substitute counsel: "(1) timeliness of the motion; (2) adequacy of the court's inquiry into the defendant's complaint; and (3) whether the conflict between the defendant and his attorney was so great that it resulted in a total lack of communication preventing an adequate defense." United States v. Walker, 915 F.2d 480 (9th Cir. 1990) (quotation omitted).

Spears' motion was not made until the first day of trial. This is generally a factor supporting denial of the motion. See United States v. McClendon, 782 F.2d 785, 789 (9th Cir. 1986) (trial judge has discretion to deny a motion to substitute made during or on the eve of trial if substitution would require continuance). However, at the state court hearing, Spears indicated that he did not understand that the trial was to begin that day. E.R. at 12.

In Walker, the trial court's inquiry into the defendant's request for substitution of counsel was limited to a discussion of counsel's competence. We concluded that this did not satisfy the requirement of adequate inquiry into the defendant's complaint, because "the proper focus of such an inquiry is on the nature and extent of the conflict between defendant and counsel, not on whether counsel is legally competent." 915 F.2d at 483 (citing McClendon, 782 F.2d at 789). In the present case, the trial court did not explicitly inquire into whether the asserted conflict between Spears and McLaughlin resulted in a lack of communication. Instead, the court examined the basis for the allegation of conflict: that McLaughlin refused, contrary to Spears' wishes, to present an alibi defense based on the witness Spears suggested. Unlike Walker, however, there was no evidence of a barrier to communication other than this disagreement over trial tactics.

In Walker, defendant's counsel indicated to the trial judge that the defendant had refused to cooperate with her in the preparation of his defense. We noted that the defendant's refusal to cooperate, coupled with the trial court's refusal to allow substitution of counsel, forced the defendant into a trial " 'with the assistance of a particular lawyer with whom he was dissatisfied, with whom he would not ... communicate. Thus, the attorney was understandably deprived of the power to present any adequate defense in [Walker's] behalf.' " 915 F.2d at 484 (citing Brown v. Craven, 424 F.2d 1166, 1169 (9th Cir. 1970)).

The present case is different. The only barrier to communication arose after the denial of the motion to substitute, when Spears failed to attend the trial, ostensibly to secure other counsel. E.R. 25-26. Because Spears waited until the last moment to express his concern, he was not "forced" to go to trial with a lawyer with whom he would not communicate in the same way as was the defendant in Walker. See Walker, 915 F.2d at 482 (defendant requested new counsel in a letter one week prior to trial); see also Brown, 424 F.2d at 1169 & n. 2 (defendant made four motions for substitute counsel in the ten weeks preceding trial).

III

The district court's denial of the petition for habeas corpus is AFFIRMED.