Sidney W.l. Hammons, Plaintiff-appellant, v. Robert Glen Borg, Warden, Defendant-appellee, 891 F.2d 295 (9th Cir. 1989)

MEMORANDUM^** 

Hammons, a state prisoner, appeals pro se from the district court's judgment denying his habeas corpus petition. Hammons argues that the California trial court erred by using a new jury in the penalty phase of his capital murder trial after he had been found guilty with special circumstances by the first jury. He also argues that he had ineffective assistance of counsel at both the trial and appellate levels. We disagree and affirm.

Hammons has no right to have the same jury in both the guilt and penalty phases of his trial. There is no constitutional right to have any jury at all in the penalty phase. United States v. Brown, 744 F.2d 905, 908-09 (2nd Cir. 1984), cert. denied, 469 U.S. 1089 (1984); see also McMillan v. Pennsylvania, 477 U.S. 79 (1985) (approving a scheme in which the court sets the penalty). Moreover, Hammons' counsel himself requested that two separate juries be used in an effort to avoid the death penalty for Hammons. Although Hammons objected to the use of the second jury after the first jury had been dismissed, this does not change the result.

Hammons' argument that he was denied effective assistance of counsel at both the trial and appellate levels lacks merit. His argument appears to be that trial counsel should not have asked for two juries and his appellate counsel should have raised this issue on appeal, which he failed to do. In order to prevail Hammons must show "first, ... that counsel's performance was deficient.... Second, ... that the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984).

We need not reach the first prong of the test since Hammons cannot demonstrate prejudice. Since the first jury found Hammons guilty of first-degree murder with special circumstances, the penalty phase was limited to deciding whether to impose the death penalty or life in prison without parole. Cal.Penal Code § 190.2 (Deering 1985). The penalty phase jury sentenced Hammons to life without parole. Thus, Hammons cannot demonstrate prejudice since he received the lower of the two possible sentences.

AFFIRMED.