Vernon Leroy Rich, Petitioner-appellant, v. United States of America, Respondent-appellee, 960 F.2d 152 (9th Cir. 1992)

MEMORANDUM^** 

Vernon Leroy Rich was convicted of four counts of bank robbery, one count of attempted bank robbery and one count of escape from federal custody.

After this court affirmed his sentence, he filed a 28 U.S.C. § 2255 petition arguing ineffective assistance of counsel. The district court denied his claim and he appeals again.

An ineffective assistance of counsel claim must be evaluated according to the standards the Supreme Court set in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, an appellant must show: (1) that counsel's performance was deficient, and (2) that the deficient performance prejudiced his defense. Id. at 687.

Rich claims that counsel's conduct was deficient because he failed to investigate a possible alibi defense and instead pursued an insanity defense. In reviewing counsel's actions, we note that: "a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland at 691.

Rich argues that he played no role in the choice of insanity as a defense. Counsel's affidavit countered that Rich played a direct and significant role in choosing to use an insanity defense based on his Post-traumatic Stress Disorder.

Evidence supports counsel's position. Rich had used the insanity defense in a previous case to gain a reduction in his charge. Moreover, there is no evidence here that he told counsel he did not wish to use that defense. In addition, both defense expert witnesses believed it was possible that Rich was unable to appreciate the nature and quality of his actions. Based on these findings and the language of 18 U.S.C. § 17,¹  we hold that counsel's decision to utilize the insanity defense was reasonable.

Because counsel's performance was not deficient, we need not reach the second prong of the Strickland test.

Rich raises a number of other issues, all of which should have been raised on direct appeal from his conviction. He has not shown cause for his failure to raise those issues nor has he shown actual prejudice. See United States v. Frady, 456 U.S. 152, 167-68 (1982). Therefore, we will not consider those issues.

AFFIRMED.