Unpublished Disposition, 899 F.2d 1225 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 899 F.2d 1225 (9th Cir. 1990)

No. 88-5954.

United States Court of Appeals, Ninth Circuit.

Before SCHROEDER and BEEZER, Circuit Judges, and JOHN P. VUKASIN, Jr.,**  District Judge.

MEMORANDUM* 

Promising an introduction to modeling, Robert Kelly lured a young girl to his house, posed her in a towel, and took pictures. While the victim was at his house and partially undressed, Kelly rubbed his penis over her body. In custody after a jury verdict of guilty for kidnapping and committing a lewd and lascivious act upon a child under the age of 14 years, Kelly seeks review in this Court of the District Court's denial of a writ of habeas corpus. In nuce, Kelly claims he was denied effective assistance of counsel at his trial.

JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C. § 2254.

STANDARD OF REVIEW

Decisions granting or denying petitions for writ of habeas corpus are reviewed de novo. Zimmerlee v. Keeney, 831 F.2d 183, 185 (9th Cir. 1987) (per curiam) cert. denied 108 S. Ct. 2851 (1988). More specifically, the ultimate conclusion of whether Kelly's counsel performed as a reasonable professional advocate and, if not, whether Kelly was prejudiced, are mixed questions of fact and law and are thus reviewed de novo. However, factual findings leading to the ultimate conclusions are binding on this Court unless they are clearly erroneous. Strickland v. Washington, 466 U.S. 668, 698, 104 S. Ct. 2052 (1984).

DISCUSSION

Chief among petitioner's objections to his trial counsel's conduct is his lawyer's failure to cross-examine the victim. Adopting the magistrate's finding that if counsel had cross-examined the girl it would have "created a specter of counsel badgering a young child," the district court found no ineffective assistance of counsel as counsel's trial tactic was professionally reasonable. We agree, particularly in light of the victim's young age. See Strickland, 466 U.S. at 687.

B. Failure to Investigate/Present Expert Medical Opinion

Petitioner argues that defense counsel's failure to consult with medical experts or to present expert medical testimony at trial constitutes ineffective representation. Petitioner claims that the prosecution's doctor corroborated the victim's testimony by stating that he had observed the swollen tissues around the victim's genital area, and that the swelling indicated that a molestation had taken place nine hours earlier. Petitioner contends that his counsel should have presented a medical expert to refute the prosecutor's expert medical witness.

Defense counsel's decision not to call a medical expert did not render his representation ineffective. Counsel could have reasonably concluded that a thorough cross-examination would be a more effective way to refute the doctor's testimony.

Defense counsel's cross-examination of the doctor resulted in the doctor admitting that the victim's hymen was intact and that the hymen area had not been penetrated; that there was no redness or swelling of the anal area; and that the swelling of the vaginal lips could have been caused by the victim's wearing tight pants. Finally and most significantly, the doctor, upon cross-examination, admitted that he could not medically conclude after examination that the victim had, in fact, been molested.

The District Court, after considering the issue, concluded that further medical testimony was not necessary to aid petitioner's position. We agree with the district court that counsel's decision not to proffer additional medical testimony did not render his assistance ineffective as the decision was reasonable and did not prejudice Kelly. See Strickland, id.

Petitioner complains that counsel was ineffective by not recalling witness Kennison to rebut the testimony of witness Kruger, who testified that petitioner confessed to having committed the crime. Petitioner claims that Kennison would have impeached Kruger by testifying that Kruger admitted lying to the district attorney about petitioner's confession, that Kruger implicated petitioner in order to take over petitioner's landscaping business, and that Kruger admitted his motive for lying to witness Kennison.

The District Court found that defense counsel had thoroughly cross-examined Kruger and that Kennison's testimony had already contradicted Kruger's testimony. From this, the District Court concluded that Kennison's testimony upon recall would have been unnecessarily cumulative or redundant. Under such circumstances, counsel's decision not to recall witness Kennison was professionally reasonable and did not deprive Kelly of effective assistance of counsel.

D. Failure to Investigate/Present Witness Testimony

Officer Robert Tomlin, of the Seal Beach Police Department, testified that he had identified himself as a police officer upon confronting Kelly, but that petitioner gave him a false name. On cross-examination, petitioner admitted that he gave the police officer a false name.

Petitioner claims that defense counsel was ineffective by not interviewing and calling Frank D'Ecclis, who was present at the scene of petitioner's arrest and purportedly would have testified that Officer Tomlin did not identify himself, and for failing to elicit an explanation from petitioner during redirect examination as to why he initially gave the arresting officer a false name.

The District Court examined the issue and made the specific factual finding that even if D'Ecclis had testified and supported petitioner, there were two other officers who were present at the scene of arrest who could have contradicted the testimony. Under such circumstances, defense counsel's decision not to interview and call D'Ecclis was professionally reasonable and did not render his assistance ineffective.

Kelly makes two final arguments--(1) that the cumulative effect of counsel's errors resulted in a breakdown of the adversarial process and that the (2) District Court failed to meaningfully review his petition. Both arguments are utterly groundless. Additionally, the court notes that Kelly has not met his burden of showing prejudice by his counsel's action in state trial Court. Strickland at 2069. Specifically, this Court does not believe that the decision reached by the jury could likely have been different absent any alleged errors on counsel's part given, among other things, the pictures taken by Kelly of the victim that were introduced at trial.

Accordingly, the judgment of the District Court is AFFIRMED.

 *

The panel has concluded that the issues presented by this appeal do not meet the standards set by Circuit Rule 36-2 for disposition by written opinion. Accordingly, it is ordered that disposition be by memorandum, forgoing publication, and that this memorandum may not be cited to or by the courts of this circuit save as provided in Circuit Rule 36-3

 **

Hon. John P. Vukasin, Jr., United States District Judge for the Northern District of California, sitting by designation