Unpublished Disposition, 884 F.2d 582 (9th Cir. 1989)

George Albert Hood appeals the denial of his petition for post-conviction relief under 28 U.S.C. § 2255, after an evidentiary hearing on two of his seven claims. We affirm.

* Early on the morning of January 1, 1981, two Park Service employees noticed a station wagon parked on the side of a road in Olympic National Park. When they stopped to investigate, they were approached by Rolena Redner, who was partially clothed and in emotional and physical distress. She said that she had been raped by the owner of the car, Hood. Ellie Charles was also in the vehicle. After an investigation, Hood was arrested and charged with one count of rape, and one lesser included count of assault with intent to commit rape, within the territorial jurisdiction of the United States. 18 U.S.C. §§ 7(3), 2301 (repealed 1986), 113(a); 16 U.S.C. § 251.

The government presented extensive testimony and physical evidence to the jury regarding the pre-assault activities of Hood, Redner, and Charles, the trip up the park road, and Hood's assault and rape of Redner. Hood was convicted of rape, and sentenced to 25 years in prison on June 26, 1981.

Hood appealed, urging three grounds for reversal: 1) improper pretrial evidentiary rulings; 2) improper comment by the prosecutor on Hood's failure to testify; and 3) ineffective assistance of counsel. This court affirmed by unpublished memorandum, ruling against Hood on each of these issues. In February 1986, the Ninth Circuit affirmed the denial of Hood's motion for a new trial on the basis of newly discovered evidence.

On November 12, 1986, Hood filed the present motion for section 2255 relief. He alleged seven grounds for relief. On June 16, 1987, Magistrate Sweigert recommended dismissal of five of the claims and an evidentiary hearing on two of them. Judge Rothstein adopted his findings and conclusions. A hearing was held on two issues: Whether the government improperly withheld from Hood a statement possibly impeaching a witness, and whether Hood's trial counsel provided ineffective assistance by giving Hood inaccurate information on the scope of the judge's pretrial rulings, thus misleading Hood into waiving his right to testify. The magistrate issued further findings and conclusions denying the two claims. The district court adopted the recommendations based on its independent review.

Hood timely appeals. Fed. R. App. P. 4(a). We have jurisdiction over this appeal of a final judgment. 28 U.S.C. § 2255. We review a denial of a section 2255 petition de novo. United States v. Quan, 789 F.2d 711, 713 (9th Cir.), cert. dismissed, 478 U.S. 1033 (1986). We review the factual findings of the district court for clear error. United States v. Arellanes, 767 F.2d 1353, 1357 (9th Cir. 1985).

II

Hood's primary claim is that the government improperly withheld a witness' material pretrial statement in violation of the Brady rule. See Brady v. Maryland, 373 U.S. 83 (1963). The statement was made to a government investigator sent by the prosecutor, Peter Mueller, in response to Redner's phone call. Redner had told Mueller that Ellie Charles, the third person in Hood's car at the time of the rape, was talking about not testifying. The investigator, Lang, took a statement from Redner's roommate, Margie Sampson, that, on April 18, 1981:

Luella [Ellie] Charles came in one night, very intoxicated and asked Lena [Rolena Redner] if she had the money that she owed to Ellie. Ellie threatened Lena that if she didn't pay up that she would change her testify [sic] in court, and she was tired and really mad that she was involved in this matter. She even showed us (Lena & I) that she tryed to comit [sic] suicide because of this case. She said that she wasn't going to show up for the next case, that this incident changed her life, and that she would commit suicide again before the next court case. All night she was just repeating herself.

Hood claims that this statement shows that Charles was basing her testimony on financial motives, and could have led to impeachment of her eyewitness testimony. Evidence impeaching the credibility of a material witness is Brady material, and failure to disclose it to the defense violates due process.¹  United States v. Bagley, 473 U.S. 667, 676 (1985). The magistrate noted that it would have been prudent for the prosecutor to at least have asked the district court to rule on the materiality of the statement, see United States v. Agurs, 427 U.S. 97, 106 (1976), but found no reasonable probability that the result of the trial would have been different if the statement had been disclosed, in light of "the overwhelming evidence of petitioner's guilt and the fact that Ms. Charles was not a key government witness."

In Bagley, the Supreme Court announced the standard of materiality for Brady evidence: "The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." Bagley, 473 U.S. at 682 (Blackmun, J.).² 

The Ninth Circuit has applied this test of materiality. In Bagley on remand, the court held that government contracts with key witnesses for the purchase and use of information were material impeachment evidence that undermined confidence in the result. Bagley v. Lumpkin, 798 F.2d 1297, 1302 (9th Cir. 1986). In a similar ruling, the court found that a key witness' status as a paid informant was material. United States v. Shaffer, 789 F.2d 682, 688-89 (9th Cir. 1986). More recently, in reviewing a trial court's decision as to what constituted Brady material, the court found impeaching evidence as to a "significant witness" on one count to be material, but found that witness' testimony as to other counts that were also supported by substantial other evidence to be merely cumulative, and thus not material. United States v. Strifler, 851 F.2d 1197, 1202 (9th Cir. 1988), cert. denied, 109 S. Ct. 1170 (1989).

At first glance, it appears that Sampson's statement is, in the words of the magistrate, "classic impeachment evidence." The statement suggests some financial arrangement, or at the very least a willingness to base testimony in a criminal trial on financial motives. Furthermore, it is difficult to see how the only witness to a rape could be other than a key witness, especially when the defense is consent. Upon further examination, however, we conclude that the district court's ruling that the statement was not material was not erroneous.

The magistrate discussed the extensive physical evidence of the rape--including torn clothes, cuts and bruises, torn-out hair, nonmenstrual vaginal blood, and Hood's knife--that supported Redner's testimony. He noted also Redner's conduct in running partially clad to the Park Service truck and frantically claiming rape. In addition, Redner's testimony was corroborated by Hood's detailed confession.

Ellie Charles' testimony was, on the other hand, "not at all crucial to the government's case," in the words of the magistrate. She had been drinking heavily and her memory was not good. The prosecutor himself mentioned the weaknesses of her testimony in final argument.³ 

Furthermore, the government presented testimony that the statement was, in fact, much more innocuous than it appears on its face--that it was merely a brief, drunken demand by a young and unstable witness for her share of some travel expenses paid by the government, rather than a scheme to testify in exchange for money. Although the magistrate did not discuss this evidence, it was entirely uncontradicted at the hearing. Therefore, the district court's conclusion that the government's failure to disclose the statement did not reasonably undermine the conviction was not error.

III

The second issue decided after an evidentiary hearing was an ineffective assistance of counsel claim. Hood alleges that his trial attorney, Allen Bentley, gave him false information regarding Judge Rothstein's evidentiary rulings, which prejudiced him by causing him to forgo his constitutional right to testify.

On May 6, 1981, Bentley and the prosecutor met with the judge to discuss evidentiary matters. Particularly at issue were six prior alleged rapes with similar fact patterns, which the government sought to introduce to prove intent pursuant to Fed.R.Evid. 404(b). The judge reserved ruling, but indicated what her ruling was likely to be:

I can't rule in the abstract on which of these would be admissible and which wouldn't and, indeed, I guess I really can't rule with any finality whether any of them will be admissible, because I don't know what his testimony is going to be. But I feel, Mr. Bentley, that I should give you some indication of what the court is thinking, so that you can make an intelligent decision about your case. My feeling right now is that if the defendant takes the stand and does put intent in issue, at least some of these, I think, would be admissible.

Later that day, Bentley met with Hood. Hood testified that Bentley assured him that all the evidence would definitely be admitted if he testified. The magistrate found Hood's testimony not to be credible. He gave much more weight to Bentley's testimony, supported by a contemporaneous memo, that he told Hood "if he did testify, some or all of that proof would come in." Hood based his decision not to testify on Bentley's prognosis that conviction of rape, while likely either way, was more likely if he testified.

A defendant's decision to take the stand is a fundamental decision that cannot be made for him by counsel. Jones v. Barnes, 463 U.S. 745, 751 (1983). Therefore, misinformation provided by counsel that affects the defendant's knowing and intelligent waiver of his right to testify certainly may implicate the sixth amendment. The analysis is guided, of course, by the Supreme Court's two-part Strickland test: 1) counsel must have made an error so serious that he was not functioning as the counsel guaranteed by the sixth amendment, and 2) the defendant must have been prejudiced to the extent of depriving him of a trial with a reliable result. Strickland v. Washington, 466 U.S. 668, 687 (1984).

Hood fails to meet the first part of the test. His attorney gave him a sufficiently accurate account of the judge's comments to allow him to make a knowledgeable choice. Bentley's comments were slightly on the pessimistic side, in that the court had not made a final ruling. Such caution is well within the range of reasonable representation, however. We further note that this court's memorandum of July 30, 1982 stated that Hood had received effective assistance from his counsel.

IV

Hood also contends that the district court erred in denying the five remaining claims without a hearing. An evidentiary hearing should be granted unless the record shows that the petition fails to state a claim, or the claim is frivolous. 28 U.S.C. § 2255; Marrow v. United States, 772 F.2d 525, 526 (9th Cir. 1985).

Hood offers no legal arguments supporting remand of these claims for an evidentiary hearing, except for some generalities on the requirements for a hearing, and a short factual review of two of the claims. Issues raised in a brief but unsupported by argument are deemed abandoned, unless manifest injustice will result. United States v. Loya, 807 F.2d 1483, 1486-87 (9th Cir. 1987); Fed. R. App. P. 28(a) (4). We find no manifest injustice.

Hood argued in his petition that his confession should have been suppressed as the result of psychological coercion. The district court did not reach the merits of the claim. Relying on a Fifth Circuit case, it found the claim noncognizable on collateral attack because Hood had made the claim in a pretrial suppression motion, which was denied after a hearing.⁴  United States v. Bondurant, 689 F.2d 1246, 1251 (5th Cir. 1982).

The district court's reliance on Bondurant, a case which stated that "admission of a confession at trial is not subject to attack under section 2255 on the ground that it was coerced when the issue was raised and full opportunity was given to the defendant to develop the issue at trial," is questionable. Id.

We have held that fifth amendment claims are cognizable under 28 U.S.C. § 2254, despite a full and fair opportunity to litigate the issue in the state trial. Hinman v. McCarthy, 676 F.2d 343, 348-49 (9th Cir.), cert. denied, 459 U.S. 1048 (1982); Patterson v. Warden, 624 F.2d 69, 70 (9th Cir. 1980) (per curiam).

As the scope of federal post-conviction relief extends at least as far as section 2254 relief, and the special considerations of federal deference to state proceedings are absent, there is even less reason to hold this section 2255 claim noncognizable than to reject the equivalent section 2254 claim. The Ninth Circuit case cited by the government is not on point--it is a short per curiam decision on the merits, not a finding of noncognizability. Lott v. United States, 445 F.2d 858 (9th Cir. 1971).

The claim must be remanded for consideration on the merits unless it is clear from the record that it has no merit. We may affirm the district court on any ground adequately supported by the record. Anselmo v. Sumner, No. 89-15011, slip op. 9443, 9450 (9th Cir. Aug. 14, 1989). We accept the facts as stated in Hood's petition for the purpose of this analysis. Hood's argument that he was coerced is based solely upon the coercion his wife, Bobbi Hood, allegedly exercised regarding the custody of their children, with one exeption: He claims that "Denise Thomas, a Child Protection Service Agency employee, came to the jail and additionally stated that [Hood's] children were never going to be seen by him again." Hood's memo in support of section 2255 motion at 22. Suppression of a confession as involuntary requires a finding of "coercive police activity." Colorado v. Connelly, 479 U.S. 157, 167 (1986). A threat to take a prisoner's children away may make a confession involuntary. United States v. Tingle, 658 F.2d 1332, 1336 (9th Cir. 1981).

Here, the only possible state action involved is the statement by the child protection worker, presumably a state of Washington employee. Hood alleges no link between her statement and the interrogation by federal agents. In any case, the statement, standing alone, is hardly the type of coercive police conduct required by Connelly, or present in Tingle. Therefore, the dismissal of Hood's claim without a hearing is affirmed.

We have carefully reviewed Hood's four remaining claims and have concluded that dismissal without an evidentiary hearing was correct in each case.

AFFIRMED.