Unpublished Disposition, 884 F.2d 582 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 884 F.2d 582 (9th Cir. 1989)

Billy JACKSON, Petitioner-Appellant,v.E. MYERS, Superintendent, Respondent-Appellee.

No. 88-6382.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 2, 1989.Submission vacated May 16, 1989.Resubmitted July 21, 1989.Decided Aug. 28, 1989.

Before FLETCHER, NELSON and WILLIAM A. NORRIS, Circuit Judges.


MEMORANDUM* 

Appellant Billy Jackson was convicted of first degree burglary and sentenced to prison for nine years: four years for the burglary conviction and an additional five years under California's mandatory sentencing enhancement statute, Cal.Penal Code 667(a), for a prior robbery conviction. After pursuing unsuccessful appeals in the state courts, Jackson filed a pro se petition for writ of habeas corpus in district court under 28 U.S.C. § 2254. The district court summarily dismissed the petition without holding an evidentiary hearing and Jackson now appeals. We affirm.

Jackson raises several grounds for relief in his petition. He claims that he received ineffective assistance of counsel because his trial attorney (1) failed to object to his appearance before the jury in prison garb; (2) advised him to stipulate to the prior robbery conviction; (3) failed to protect his right to a speedy trial; and (4) failed to locate an alibi witness. Jackson also claims that he was denied effective assistance of appellate counsel.

A district court may deny a 28 U.S.C. § 2254 motion without a hearing if petitioner's allegations, even if proven, would not establish the right to relief. See Bashor v. Risley, 730 F.2d 1228, 1233 (9th Cir.), cert. denied, 469 U.S. 838 (1984). We consider each of Jackson's claims for relief separately to determine whether the district court erred in summarily dismissing his petition.

First, Jackson claims that he was denied effective assistance of counsel because his lawyer failed to object to his appearance before the jury in identifiable prison clothes. A defendant alleging ineffectiveness of counsel must demonstrate that his counsel's performance was deficient and "that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694 (1984).

Because we find that petitioner has not established that he was prejudiced by the alleged error, we need not decide whether counsel's performance was deficient in permitting Jackson to appear at trial in prison clothes. There was overwhelming evidence adduced at trial that Jackson was guilty of burglary as charged. A police officer who was conducting surveillance of the hotel testified that he saw Jackson furtively try to open the doors of several of the hotel rooms and then, eventually, enter one of those rooms. The occupant of that room testified that he heard Jackson working with the lock of his door for several minutes, saw Jackson open his door and crawl into his room. In light of this evidence, Jackson has failed to establish that there is a reasonable probability that the jury would have acquitted him had his attorney ensured that he appeared throughout his trial wearing civilian clothes.

Second, Jackson's claim that his counsel was incompetent in advising him to admit to the prior conviction for robbery also fails. Because Jackson was tried and sentenced as an adult on the prior robbery charge, section 667(a) of the California Penal Code mandates that the sentencing judge impose an additional five-year sentence. People v. Jacob, 174 Cal. App. 3d 1166, 220 Cal. Rptr. 520 (1985). Trial counsel's decision to have Jackson admit the prior conviction, rather than having the state prove it, appears to have been a reasonable tactical decision intended to keep the prior conviction from the jury and to portray Jackson in the most favorable light to the trial judge. Moreover, Jackson cannot demonstrate that he was prejudiced by his counsel's conduct. Had counsel advised Jackson to deny the prior conviction, the state easily could have proven it by introducing a certified copy of the prison record, court order or judgment. People v. Leever, 173 Cal. App. 3d 853, 871, 219 Cal. Rptr. 581 (1985).

Third, Jackson claims that trial counsel was ineffective because he moved to continue the trial beyond the sixty-day period provided by the Speedy Trial Act. There is no merit to this claim. Jackson has not established that it was unreasonable under the circumstances for his counsel to continue the trial until December 17, thirteen days after the sixty-day period expired.

Fourth, we consider Jackson's claim that his counsel was ineffective because he failed to call an alibi witness to testify in Jackson's defense. Jackson did not include in his petition the name of the alleged alibi witness, the substance and relevance of her testimony, or the circumstances surrounding his lawyer's decision not to call her. "A federal district court is not required to grant an evidentiary hearing where the allegations in the petition are 'conclusory and wholly devoid of specifics.' " Bashor, 730 F.2d at 1233 (citations omitted). We believe that the district court was not required to grant an evidentiary hearing before denying Jackson's clearly inadequate allegation. See Shah v. United States, No. 87-6382, slip op. at 6872 (9th Cir. June 26, 1989).

Finally, since there is no merit to any of Jackson's claims as to his trial counsel, there is no merit to his remaining claim that his appellate counsel was ineffective in failing to raise them during his direct appeal.

AFFIRMED.

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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Circuit Rule 36-3