Unpublished Disposition, 883 F.2d 1023 (9th Cir. 1988)

MEMORANDUM^** 

Petitioner Henry Gillham appeals pro se the denial of his petition for writ of habeas corpus. He argues that he was denied due process because the trial court failed to instruct the jury to view accomplice testimony with suspicion; that he received ineffective assistance of counsel; that he was denied his right to confront witnesses because he turned off his hearing aid; and that he was denied an impartial jury because, during the trial, one juror read a newspaper article summarizing the state's case. On September 30, 1988, the district court dismissed the petition. We agree with the district court's ruling and affirm.

We review the district court's legal conclusions de novo and its factual findings for clear error. Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir. 1986).

Gillham alleges that the trial judge's failure to instruct the jury to regard the accomplice witnesses' testimony with distrust, combined with his instruction that a witness is presumed to speak the truth, violates due process. The district court held that these instructions, although improper as a matter of state law, do not rise to constitutional error.

To prove a due process violation based on jury instructions, a habeas petitioner must show that the instruction "by itself ... infected the entire trial." Van Pilon v. Reed, 799 F.2d 1332, 1342 (9th Cir. 1986) quoting Henderson v. Kibbe, 431 U.S. 145, 154 (1977). Gillham has failed to show a federal due process violation by the state trial court's jury instructions because extensive evidence corroborated the testimony of the accomplice witnesses. Where the guilt of the defendant does not rest upon the testimony of an accomplice, the state court's failure to give the instruction did not infect Gillham's trial nor render it fundamentally unfair.

Gillham further argues that he was denied effective assistance of counsel because his trial counsel failed to make a suppression motion and withdrew a requested jury instruction. Under Strickland v. Washington, 466 U.S. 668 (1984), Gillham must show not only the deficiency of his counsel's performance but also that these deficiencies were so prejudicial that they affected the outcome of the proceeding. We consider the prejudice suffered by the defendant as a result of the alleged deficiencies before reaching a determination regarding counsel's performance. 466 U.S. at 697.

Gillham cannot establish prejudice resulting from his counsel's failure to file a suppression motion. The pistol which Gillham argues should have been the subject of this motion was offered merely as collateral evidence of his pattern of conduct. His arguments concerning the jury instruction share the same infirmity. As discussed above, the omission of the instruction did not affect the outcome of the trial and so cannot support a claim for ineffective assistance.

Third, Gillham claims that he was denied his right to confront witnesses because he turned off his hearing aid at his attorney's request. Because Gillham merely complied with his own counsel's suggestion that he turn down his hearing aid, he lacks state action on which to base his sixth amendment claim. Accordingly, he presents no grounds for habeas relief.

Gillham also alleges that his right to an impartial jury was denied because one juror read a newspaper article summarizing the state's case at the close of the prosecution's evidence. When a juror's impartiality is put in issue, investigation of that juror's possible bias lies within the trial judge's discretion and raises no constitutional issue unless the procedures followed are unreasonable and devoid of purpose to obtain an impartial tribunal. See Hilliard v. Arizona, 362 F.2d 908, 910 (9th Cir. 1966). Gillham has not suggested that the juror here relied on outside information during the jury's deliberations. If the juror can lay aside his impressions or render a verdict based on the evidence presented in court, then the defendant has received a fair and impartial trial. Evans v. Arizona, 410 F.2d 1122, 1124 (9th Cir. 1969).

Finally, Gillham challenges the correctness of various state evidentiary rulings and contends that he was not given a full and fair opportunity to litigate his fourth amendment claims. If a federal habeas petitioner simply challenges the correctness of the state evidentiary rulings, he has not alleged a deprivation of federal rights. Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983). Gillham's fourth amendment claim also fails to present grounds for habeas relief. Under Stone v. Powell, 428 U.S. 465 (1976), an opportunity at trial for a fair hearing on a fourth amendment claim forecloses further inquiry, upon habeas petition, into the subsequent course of action. See Caldwell v. Cupp, 781 F.2d 714 (9th Cir. 1986). Gillham does not deny that he was afforded such an opportunity.

The district court order is AFFIRMED.