Unpublished Disposition, 872 F.2d 428 (9th Cir. 1987)

MEMORANDUM^*

Charles Edward James, appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. James argues that his sixth amendment right to effective assistance of counsel was violated because his trial counsel failed to call an alibi witness to testify and because he provided the witness's name to the prosecution in compliance with Fed. R. Crim. P. 12.1(a). On appeal, James contends that the district court's denial of his motion without an evidentiary hearing was error. We affirm.

On December 12, 1983, the Church Members Credit Union in Sacramento was robbed of $180 in cash taken from a cash box in the vault by a man who wore a ski mask and at least one glove and appeared to carry a gun. During the course of the robbery, the robber used a "handi-wipe" to wipe off a door knob he had touched. The Sacramento police, in cooperation with the FBI, dusted the cash box for fingerprints.

On February 4, 1984, a credit union employee discovered a ski mask, a handi-wipe and a toy gun in a desk drawer in the credit union's front office. The witnesses to the robbery identified these items as being very similar to the ski mask, handi-wipe and gun used by the robber. These items were taken by the FBI for testing.

At trial, an expert witness testified that James's fingerprints matched some of the fingerprints on the cash box. Another expert testified that hair samples taken from the ski mask and handi-wipe had the same characteristics as hair samples taken from James after his arrest.

James was the only defense witness. He testified that he was not at the credit union on December 12, 1983, but was instead with Robin Lenord and her daughter at Lenord's home and at a nearby store during the time the robbery occurred. Although defense counsel listed her as a potential alibi witness, Lenord did not testify at trial.

On May 16, 1984, the jury convicted James of robbery of a federally-insured credit union in violation of 18 U.S.C. § 2113(a). He was sentenced to twenty years' imprisonment. On direct appeal, we affirmed James's conviction in a memorandum disposition (Case No. 84-1197).

On September 23, 1986, James filed a motion to vacate his sentence under 28 U.S.C. § 2255. The district court adopted a magistrate's report and recommendation, and denied the motion on October 14, 1987. We review de novo the denial of a motion to vacate under 28 U.S.C. § 2255. United States v. Quan, 789 F.2d 711, 713 (9th Cir.), cert. dismissed, 478 U.S. 1033 (1986). Whether counsel's performance was ineffective is a mixed question of law and fact, reviewable de novo. United States v. Birtle, 792 F.2d 846, 847 (9th Cir. 1986).

II

James contends that his counsel was ineffective because (1) counsel failed to call Robin Lenord as an alibi witness; and (2) counsel supplied Lenord's name to the prosecution, thereby allowing the prosecution to pressure Lenord into not testifying on James's behalf.¹ 

To obtain relief based on a claim of ineffective assistance of counsel, "the petitioner must show that counsel made errors that a reasonably competent attorney acting as a diligent and conscientious advocate would not have made, and petitioner must also demonstrate prejudice." Butcher v. Marquez, 758 F.2d 373, 375-76 (9th Cir. 1985). There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.

Defense counsel's failure to call Lenord as an alibi witness was a reasonable trial tactic and thus did not fall below the standard required for effective assistance of counsel.

First, there is evidence in the record which suggests that Lenord was unwilling to testify on James's behalf. At a pretrial hearing held on the morning of the first day of trial, the prosecutor objected to defense counsel's "last-minute" listing of Lenord as an alibi witness. In response, defense counsel stated, "Let me suggest that the question may be moot. I can tell you at this time, ... as far as I know, I don't have an alibi witness right now."

Second, the record suggests that Lenord would not have been a credible witness. At that same pretrial hearing, the prosecutor asserted that Lenord "has a rap sheet that literally is two or three feet long, almost entirely prostitution arrests." Thus, Lenord's credibility would have been at issue had she chosen or been compelled to testify. James's attorney's failure to call Lenord as an alibi witness therefore was well within the wide range of responsible professional assistance allowed by the sixth amendment. See United States v. Harden, 846 F.2d 1229, 1231-32 (9th Cir.), cert. denied, 109 S. Ct. 264 (1988) (defense counsel's decision not to call codefendant as witness was a "reasonable trial tactic" because there was no evidence that the codefendant was willing to testify and because the codefendant was a convicted felon whose credibility would have been at issue).

B. Providing Name of Alibi Witness to Prosecution

James's argument that his counsel was ineffective because he provided Lenord's name to the prosecution lacks merit. Pursuant to Fed. R. Crim. P. 12.1(a), defense counsel is required to provide the prosecution with alibi witness information when the prosecution requests it.²  Failure by defense counsel to comply with this rule may result in the exclusion of the testimony of the undisclosed alibi witness. See Fed. R. Crim. P. 12.1(d). Defense counsel's compliance with a federal procedural rule is clearly reasonable professional conduct.

III

Under section 2255, the district court is required to hold an evidentiary hearing " [u]nless the motions and files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255. The district court may deny a section 2255 motion without an evidentiary hearing if the movant's allegations do not involve matters outside the record and if these allegations, viewed against the record, do not state a claim for relief or are so palpably incredible or patently frivolous as to warrant summary dismissal. Marrow v. United States, 772 F.2d 525, 526 (9th Cir. 1985); Baumann v. United States, 692 F.2d 565, 570-71 (9th Cir. 1982). Because James's allegations do not involve matters outside the record and because these allegations, viewed against the record, do not state a claim for relief, the district court did not err in denying his section 2255 motion without an evidentiary hearing.

AFFIRMED.