Unpublished Disposition, 885 F.2d 875 (9th Cir. 1985)

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U.S. Court of Appeals for the Ninth Circuit - 885 F.2d 875 (9th Cir. 1985)

Larry A. THOMAS, Petitioner-Appellant,v.Robert BORG, Warden, Respondent-Appellee.

No. 88-15735.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 18, 1989.* Decided Sept. 13, 1989.



Larry A. Thomas appeals pro se the denial of his petition for habeas corpus by the district court. Thomas was convicted February 5, 1985, following a jury trial in California state court, of four offenses related to an armed bank robbery. Thomas was sentenced to a total of nine years imprisonment.

Thomas was tried with his codefendant, Angelo Raynard Vinson, who committed the actual robbery in the bank. Thomas was identified five minutes after the robbery as the driver of the car carrying Vinson away from the bank.

Thomas first argues that there was insufficient evidence to support his conviction for aiding and abetting the robbery. The district court properly rejected this claim, for there was sufficient evidence for the jury to conclude beyond a reasonable doubt that Thomas knew of Vinson's intent to commit the robbery and that Thomas intended to facilitate the crime. An individual was seen driving Vinson to the bank, and away from the bank immediately after the robbery. Thomas was apprehended minutes later driving the car in which Vinson was riding as a passenger. The jury could rationally have concluded that Thomas knew of Vinson's plan to rob the bank, and planned to assist him. See People v. Beeman, 35 Cal. 3d 547, 674 P.2d 1318, 1325, 199 Cal. Rptr. 60 (1984) (conviction of aiding and abetting requires evidence that defendant rendered aid with the intent to facilitate the offense).

Thomas also contends that he was denied effective assistance of counsel at trial because his counsel used an ex-felon as an investigator. Thomas questions this decision because the investigator's criminal record allowed him to be impeached when he testified at the trial. However, the choice of an investigator is a tactical decision requiring the weighing and comparison of relative strengths and weaknesses of available choices. We do not know what those choices were. The choice of an investigator with criminal experience may well have some advantages. It cannot be said to be outside the range of professionally competent assistance so as to deprive the defendant of a fair trial under the standards of Strickland v. Washington, 466 U.S. 668, 687-90 (1984).

Thomas also contends that trial counsel fell below the standard required for effective assistance of counsel under the sixth amendment by failing to strike juror James Scholten from the jury after Scholten related some additional information about his acquaintances with law enforcement officials to the court. However, a review of the information related by Scholten shows that none of Scholten's statements revealed the sort of inherent bias that would lead any competent counsel to strike a juror for cause. Scholten stated that he was a social friend of two judges, that two police officers were former employees and personal friends, and that one of his neighbors was a state prosecutor. He stated that he had spoken to the prosecutor four times in five years, never about any of the prosecutor's work. He also stated that he never discussed police work with either of his police officer friends, nor with his friends who were judges. He said that these friendships would have no adverse effect on his ability to conduct his duties as a juror impartially. Counsel's decision not to strike Scholten from the jury because of these facts did not fall below the Strickland standard for professionally competent assistance.

Thomas' final contention that he was denied effective assistance of counsel on appeal because appellate counsel failed to raise the issue of ineffective assistance of trial counsel must also be rejected for the reasons stated above. There has been no showing of ineffective assistance of counsel.



The panel finds this case appropriate for submission without argument pursuant to 9th Cir.R. 34-4 and Fed. R. App. P. 34(a)


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 Cir.R. 36-3