Unpublished Disposition, 855 F.2d 863 (9th Cir. 1989)

MEMORANDUM^* 

David Thomas Rhodes appeals from the denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. After reviewing the motion, the government's response, and Rhodes' traverse, the court denied his request for an evidentiary hearing.

Rhodes raises three issues on appeal.

One. He was denied effective assistance of counsel because his attorney failed to make a timely request for a court order to secure the presence of a defense witness.

Two. He was denied effective assistance of counsel because his attorney admitted during oral argument that his client was guilty of some of the crimes.

Three. The district court erred in denying his request for an evidentiary hearing.

Because we have concluded that the record demonstrates conclusively that failure to procure the witness was not prejudicial, and the remarks of counsel were not unprofessional, we affirm. We discuss each issue and the facts pertinent thereto under separate headings.

Failure to Procure The Witness Was Not Prejudicial

Rhodes contends that the failure of his attorney to make a timely request for an order to the federal marshal to produce Stanley Donaldson as a witness denied him effective assistance of counsel. Rhodes argues that Donaldson's testimony would have supported his defense to Counts IV, V, and VI. Rhodes was charged in Counts IV, V, and VI with possession of an unregistered firearm. Rhodes was acquitted of Count IV. He was found guilty as charged in Count I (conspiracy to possess with intent to distribute cocaine), Count II (interstate travel in aid of racketering), Count III (unlawful use of a communication facility), and Counts V and VI (possession of an unregistered firearm).

At the time of his arrest, Donaldson made a statement in which he related to a Drug Enforcement Administration officer that Rhodes had set up a cocaine purchase with a friend in Reno, Nevada. Donaldson, Burt Snider and Frank Aust, agreed, outside of Rhode's presence, to take cocaine from the drug dealer without paying for it. Donaldson also stated Rhodes was not told that the others did not have the right amount of money and that they planned to use two sawed off shotguns to intimidate the cocaine dealer. Rhodes was told that they had the right amount of money. Instead, they had several packets of money with plain paper between the top and bottom bills to make them look like they contained large amounts of currency.

During trial, Rhodes' attorney presented the court with a subpoena for Donaldson. Donaldson had previously pleaded guilty and had been sentenced to serve a short period of confinement in a federal institution. Neither counsel was aware of his present whereabouts or whether he had been released from prison. The prosecutor objected to a continuance to permit defense counsel to attempt to locate Donaldson. The court was told by the prosecutor that Rhodes' attorney had been informed ten days to two weeks before that day that the government did not intend to call Donaldson. The court refused to issue the subpoena because counsel had made his request too late to obtain him for trial. Donaldson did not testify.

To establish ineffective assistance of counsel, a defendant must show that his attorney's "representation fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 688 (1984); Woratzeck v. Ricketts, 820 F.2d 1450, 1452-53 (9th Cir. 1987). This court must presume that "counsel's conduct falls within the wide range of reasonable professional assistance...." Strickland, 466 U.S. at 689; United States v. Hamilton, 792 F.2d 837, 839 (9th Cir. 1986). The defendant also must prove prejudice by showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.

From this record, it appears to us that counsel's failure to request the court's assistance in procuring a defense witness, whose present location was unknown, fell below the requirements of reasonable professional assistance. Rhodes has failed to demonstrate, however, that failure to produce Donaldson as a witness was prejudicial.

Rhodes' attorney exploited Donaldson's failure to appear and testify from the trial by arguing to the jury

"if Stanley Donaldson were to have something to say contrary regarding knowledge of guns, knowledge of phoney money, knowledge of a planned rip-off of David Rhodes, you can pretty well believe he would have been here to testify.

Through this tactic, counsel was able to argue the effect of Donaldson's exculpatory statement without subjecting him to cross-examination or exposing Rhodes to inculpatory testimony. We note also that had Donaldson testified to the facts set forth in his statement, he would have provided damaging testimony concerning the more serious charges contained in Counts I and II.

Rhodes has failed to show a reasonable probability that the result of the trial would have been different had Donaldson testified. He has not demonstrated ineffective assistance of counsel for failure to make a timely request to subpoena Donaldson.

Defense Counsel's Closing Remarks Did Not Deny Rhodes

Effective Assistance of Counsel

Rhodes asserts that he was denied the effective assistance of counsel because his attorney told the jury that he would concede that Counts II and III had been proved in light of his client's admission during his testimony. We disagree.

Counsel also argued to the jury that they should acquit Rhodes on Counts I, IV, V, and VI. It is clear to us that counsel made a tactical decision to concede the two counts that his client admitted and attempt to raise a reasonable doubt on the remaining charges. The strategy was partially successful. The jury acquitted Rhodes of Count IV. The Supreme Court in Strickland instructed that there is a strong presumption that counsel's tactical decisions are made in the exercise of sound trial strategy. 466 U.S. at 689. The fact that the tactic may have failed or that the defendant now disagrees does not establish ineffectiveness of counsel. See People of the Territory of Guam v. Santos, 741 F.2d 1167, 1169 (9th Cir. 1984) (tactical decision with which a defendant disagrees cannot form the basis of a claim for ineffective assistance of counsel).

Rhodes has failed to overcome the presumption that counsel's remarks to the jury were the result of reasonably competent jury argument strategy.

The Trial Court Did Not Err In Denying An Evidentiary Hearing

Rhodes argues that he has demonstrated by the facts he presented in support of his ineffectiveness of counsel claims that he was entitled to an evidentiary hearing. We review de novo the denial of a writ of habeas corpus. Weygandt v. Ducharme, 774 F.2d 1491, 1492 (9th Cir. 1985).

A petitioner is entitled to a hearing under 28 U.S.C. § 2255 " [u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief...." 28 U.S.C. § 2255 (1982). Hence, the district court must grant a hearing "unless the movant's allegations, when viewed against the record, do not state a claim for relief or are so palpably incredible or patently frivolous as to warrant summary dismissal." United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984), cert. denied, 470 U.S. 1058 (1985).

Here, as discussed above under rubrics I and II, the record conclusively shows that Rhodes was not deprived of effective assistance of counsel. Accordingly, the district court did not err in denying Rhode's motion without an evidentiary hearing.

Affirmed.