Unpublished Disposition, 895 F.2d 1417 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 895 F.2d 1417 (9th Cir. 1990)

Zeron LEWIS, Petitioner-Appellant,v.Daniel VASQUEZ, Warden, Respondent-Appellee.

No. 88-5702.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 7, 1990.* Decided Feb. 9, 1990.

Before CANBY, BRUNETTI, and FERNANDEZ, Circuit Judges.


MEMORANDUM*

Zeron Lewis, a California state prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2254 habeas petition. We affirm.

* Lewis was convicted by a jury of first degree murder in violation of Cal.Penal Code Sec. 187, and was sentenced to 25 years to life under Penal Code Sec. 190. He now contends his sentence is illegal because section 190 is unconstitutionally vague in violation of the due process clause. Section 190 provides:

Every person guilty of murder in the first degree shall suffer death, confinement in the state prison for life without possibility of parole, or confinement in the state prison for a term of 25 years to life. The penalty to be applied shall be determined as provided in Sections 190.1, 190.2, 190.3, 190.4 and 190.5.

Cal.Penal Code Sec. 190.

Lewis asserts the language of section 190 mandates that his penalty be determined as provided in sections 190.1 to 190.5, and each of those sections pertains only to the special circumstances justifying or requiring imposition of the death penalty or life without parole. Thus, he argues, section 190 is vague as to the penalty to be given persons who are found guilty of murder but who have not been charged with special circumstances. We disagree.

Section 190 is not vague on its face. It clearly provides persons "of average intelligence" fair notice that if convicted of first degree murder, they will receive, at minimum, a sentence of 25 years to life. See United States v. Spencer, 839 F.2d 1341, 1343-44 (9th Cir.), cert. denied, 108 S. Ct. 2908 (1988). The district court did not err in denying relief on this claim.

II

Lewis also contends that his trial counsel was constitutionally inadequate for failing to raise his claim that section 190 was unconstitutionally vague. The failure to make a meritless argument does not constitute ineffective assistance. See Baumann v. United States, 692 F.2d 565, 572 (9th Cir. 1982). Because Lewis's argument regarding his sentence was meritless, so too is his claim for ineffective assistance of counsel.

AFFIRMED.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

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