Unpublished Disposition, 940 F.2d 1535 (9th Cir. 1991)

MEMORANDUM^** 

Thomas L. Roberts, a Nevada state prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition. Roberts alleges that at his trial for the sexual assault of his daughter, his attorney rendered him ineffective assistance of counsel. We review de novo, Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989), and we affirm.

To demonstrate ineffective assistance of counsel, a defendant must show that the counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient performance is demonstrated when "counsel made errors so serious that the counsel was not functioning as the 'counsel' guaranteed the defendant by the sixth amendment." Id. There is a strong presumption that counsel's conduct falls within the "wide range of reasonable professional assistance." Id. at 689. Prejudice is established if there is a reasonable probability that but for the counsel's error, the result of the proceeding would have been different. Id.

Roberts contends that his attorney rendered ineffective assistance of counsel in five ways.

First, Roberts alleges that his attorney should have called an alibi witness to support his alibi that at the time of the assault, he was making a service call. Roberts's counsel, however, interviewed the witness, whose recollection of the time of the service call differed from Roberts's recollection. Counsel's decision not to call the witness was a reasoned, tactical decision which cannot form the basis for a claim of ineffective assistance of counsel. Guam v. Santos, 741 F.2d 1167, 1169 (9th Cir. 1984).

Second, Roberts claims that his attorney should have called Thomas Birdwell, a boarder in his house, as a witness. Apparently the prosecution initially charged that previous incidents of sexual misconduct occurred on weekends, and Birdwell would have testified that this was not so. Roberts, however, was only tried for one incident which occurred in the middle of the week between approximately 3:00 and 3:30 p.m. Thus, Birdwell's testimony would have been immaterial, and counsel's failure to call him as a witness does not constitute deficient performance. See Strickland, 466 U.S. at 687.

Third, Roberts contends that his attorney did not adequately impeach the testimony of the victim and two eyewitnesses, school friends of the victim who hid in a closet and witnessed the assault. Nevertheless, his attorney cross-examined the three witnesses, impeached their testimony with inconsistencies in their accounts, and presented evidence to show that their testimony was suspect. Accordingly, counsel's conduct on cross-examination does not constitute deficient performance. Id.

Fourth, Roberts alleges that his attorney was ineffective because he belatedly requested a jury view of the closet, which Roberts apparently alleges was either too small for the eyewitnesses to fit in or too small to see anything from. The trial court denied the motion, but Roberts apparently argues that had his counsel made the motion earlier in the trial or in writing, the court might have granted it. Nevertheless, a police officer testified at trial that he fit into the closet. Counsel also argued at trial that the closet was small and cross-examined the witnesses, who conceded that visibility from the closet was limited. Counsel's conduct does not constitute deficient performance. Id.

Finally, Roberts alleges conclusorily that his attorney did not interview the witnesses before trial and thus was not prepared at the trial. Nevertheless, counsel cross-examined the state's witnesses and presented witnesses, including Roberts's co-workers, neighbors, and his wife, to establish an alibi defense. Counsel's conduct was within the "wide range of reasonable professional assistance" and thus does not constitute ineffective assistance. Id. at 689.

AFFIRMED.