Unpublished Disposition, 863 F.2d 886 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 863 F.2d 886 (9th Cir. 1988)

William R. RICHARDSON, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.

No. 86-2480.

United States Court of Appeals, Ninth Circuit.

Submitted*  Nov. 14, 1988.Decided Nov. 21, 1988.

Before PREGERSON, CANBY and BEEZER, Circuit Judges.


MEMORANDUM** 

William R. Richardson appeals pro se the denial of his motion under section 2255 to set aside his conviction. Richardson was convicted of eleven counts of tax fraud. We review de novo, United States v. Quam, 789 F.2d 711, 713 (9th Cir.), cert. denied, 107 S. Ct. 16 (1986), and affirm.

Richardson claims prosecutorial misconduct in that the prosecutor failed to disclose the exact amount of money involved in Richardson's fraudulent tax returns. He claims this omission prejudiced him by allowing the prosecution to use exaggerated figures when speaking to the jury. See Taylor v. Cardwell, 579 F.2d 1380, 1383 (9th Cir. 1978) (habeas petition must allege prejudice due to prosecutorial misconduct). Richardson fails, however, to show a single instance of such behavior. Even if he did, Richardson has not shown how it has risen to the level of a constitutional claim. See Donnelly v. DeChristoforo, 416 U.S. 637, 647-48 (1974).

Richardson also claims that his sixth amendment right to effective counsel was denied because the judge at his criminal trial told him that if he continued to request relief of counsel "at some point you are going to wind up representing yourself." Richardson claims this advice cowed him into not insisting his case be presented as he wished.

The record indicates that Richardson requested his original counsel be relieved because that attorney would not file what both court and counsel considered to be frivolous motions. Furthermore, the district judge specifically predicated his advice to Richardson on Richardson's insistence on dismissing counsel that would not file frivolous motions.

Richardson's right to choose counsel "is not absolute." Terry v. Enomoto, 723 F.2d 697, 700 (9th Cir. 1984). " 'An accused's right to select his own counsel cannot be insisted upon in a manner that will obstruct an orderly procedure in courts of justice.' " Id. (quoting Releford v. United States, 288 F.2d 298, 301 (9th Cir. 1961). Richardson's insistence that he be allowed to dismiss court appointed counsel until he finds one that will file frivolous motions is beyond the pale of the sixth amendment.

Richardson's claim that he was denied effective counsel is equally meritless. Richardson shows no prejudice to his case caused by any deficiencies of counsel. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

Richardson's remaining claims were not raised at trial or were disposed of on appeal.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3