Unpublished Disposition, 846 F.2d 1382 (9th Cir. 1987)

No. 87-3916.

United States Court of Appeals, Ninth Circuit.

Before EUGENE A. WRIGHT, CANBY, Circuit Judges, and CHARLES A. LEGGE, District Judge.^** 

MEMORANDUM^* 

Burns is incarcerated in Washington State on convictions of first degree kidnapping and first degree rape. We here review the summary judgment entered against Burns on his section 2254 petition for habeas relief. Affirmed.

We shall address his challenges in the order he presented them.

1. Non-disclosure of the prosecution's contact with a potential witness. Burns argues that non-disclosure of police contacts with Delores Swenson violated the requirements of Brady v. Maryland, 373 U.S. 83, 87 (1963). That argument fails because those contacts yielded no material or exculpatory evidence.

Detective Atchley explained that he made no written record of his contacts with Swenson, and that she refused to discuss the events in question. Following his conviction Burns succeeded in locating Swenson (and through her, Mr. Vold, a second possible witness). He then offered Swenson's and Vold's affidavits in support for a motion for new trial. The Washington Court of Appeals, in affirming denial of that motion, explained: "Neither the revelation that Det. Atchley had contacted Swenson nor the facts that she and Mr. Vold disclosed in their affidavits would have affected the trial, because the affidavits were not exculpatory." See United States v. Agurs, 427 U.S. 97, 104 (1976). That conclusion is supported by the record in this case. See Magistrate Weinberg's January 23, 1987 Report and Recommendation, adopted by the court below, [Magistrate's Report] at 3-6.

2. State court error in denying Burns' motion for new trial. This claim states no violation of the Constitution or laws of the United States. It is not cognizable under a section 2254 petition. See Engle v. Isaac, 456 U.S. 107, 119 (1982); Guiterrez v. Griggs, 695 F.2d 1195, 1197-98 (9th Cir. 1983); Magistrate's Report at 7-8.

3. Double jeopardy. We are bound by state supreme courts' determinations of state law. See Wainwright v. Goode, 464 U.S. 78, 84 (1983). According to the Washington Supreme Court, first degree kidnapping and first degree rape charges do not merge if the kidnapping was for "an independent purpose or effect." State v. Johnson, 92 Wash. 2d 671, 676, 600 P.2d 1249, 1252 (Wash.), cert. dismissed, 446 U.S. 948 (1979). Here, the kidnapping was to effect extortion; the rape occurred after that scam had failed, and caused separate injury. See Magistrate's Report at 11-13. Burns was not subjected to double jeopardy.

4. Prosecutorial comments re: (a) Don Berg, (b) Burns' credibility. Our review of prosecutors' comments in section 2254 proceedings is "the narrow one of due process, and not the broad exercise of supervisory power." Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1973). Our inquiry here is whether the comments, taken in light of the entire proceedings, "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Id. at 643.

(a) Burns argues first that the prosecutor presented and argued false and hearsay testimony about Don Berg's participation in the crimes.¹  The record does not support his claim that the prosecution knew the testimony regarding Don Berg was false. The record indicates only that Berg admitted meeting with Burns, denied actual participation in the crime, and passed a polygraph test when making those statements.

The comment referred to in closing argument was admitted, without objection, in direct examination of the victim, Donna Berg:

[Burns told me] "You know who set you up, don't you?"

I said, "No."

He said, "Your ex-husband." He says, "He was up here drinking with me last night."

Verbatim Report of Proceedings, Vol. II., page 61, lines 16-18. The jury was properly instructed that counsels' arguments were not evidence. Burns cannot demonstrate any prejudice from the prosecution's adversion to admitted testimony.²  The prosecution's use of that testimony did not violate Burns' constitutional rights.

(b) Burns argues further that the prosecutor improperly expressed personal belief that Burns was lying, that his story was a makeshift fabrication. Opening Brief at 32-46. This sub-argument is not properly before us. Burns neither alleged it in his initial Petition,³  nor argued it below with regard to prosecutorial error. We do not review it because "the only issues properly before this court are those in the petition." Ahlswede v. Wolff, 720 F.2d 1108, 1109 (9th Cir. 1983), cert. denied, 469 U.S. 873 (1984).

5. Ineffective assistance of counsel. This claim fails for the reasons explained in the Magistrate's Report at 16-18: Burns' appellate counsel is entitled to the strong presumption that his conduct fell within the wide range of reasonable professional assistance, see Strickland v. Washington, 466 U.S. 668, 689 (1983); and in support of Burns' direct appeal to the state court of appeals counsel did submit a professionally-researched twenty-two page brief, with citations to and quotations from the trial record. He argued thoroughly and professionally the three issues he apparently thought had merit.

Burns' claim that counsel's performance during his bond revocation battles was deficient is moot and without merit. See Magistrate Sweigert's February 14, 1985 Report and Recommendation, discussing Burns' misunderstanding of the law of bond revocation and the fact that Burns' bail counsel prepared briefs and argued strenuously in his behalf.

6. Denial of an evidentiary hearing and of counsel for habeas proceedings. Burns adduces no evidence in support of his challenge to the district court determination that no evidentiary hearing was necessary. Our review discloses no basis for an evidentiary hearing. See Townsend v. Sain, 372 U.S. 293, 313 (1962) (listing six circumstances in which an evidentiary hearing must be granted). We affirm the determination below.

A section 2254 proceeding is civil in nature. It does not implicate the Sixth Amendment right to counsel. In this case, no evidentiary hearing was necessary. For those reasons we conclude that the district judge did not abuse his discretion in deciding not to appoint counsel in these proceedings.

CONCLUSION

The summary judgment below is AFFIRMED.