Unpublished Disposition, 899 F.2d 1225 (9th Cir. 1990)

MEMORANDUM^** 

Randel Steven Reasoner, an Arizona state prisoner, appeals the district court's denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Reasoner's petition concerns his previous efforts to suppress evidence used against him at trial. We review de novo the denial of a habeas petition and the decision on effectiveness of counsel. Weygandt v. Ducharme, 774 F.2d 1491, 1492-93 (9th Cir. 1985). We review factual findings of the district court for clear error. Hayes v. Kincheloe, 784 F.2d 1434, 1436 (9th Cir. 1986), cert. denied, 484 U.S. 871 (1987). Applying these standards, we affirm the lower court's decision in its entirety.

* Reasoner contends that his arrest on a Colorado fugitive warrant was mere pretext by which authorities were able to conduct a "search incident to arrest" and gather evidence on Arizona auto theft charges. However, Reasoner is barred from presenting this potential fourth amendment violation in a section 2254 petition. Stone v. Powell, 428 U.S. 465, 481-82, 494 (1976).

Reasoner argues that Stone should not bar his petition because he did not receive a full and fair state suppression hearing. See id. In support of this contention, Reasoner asserts that after his initial suppression motion was denied, the Arizona courts refused to consider supplemental evidence which Reasoner alleges to be "newly discovered." The allegedly "new" evidence is a police report that purportedly shows Reasoner's arrest to be pretextual. In support of his argument that the state courts must conduct an evidentiary hearing on his "new" evidence, Reasoner cites Townsend v. Sain, 372 U.S. 293 (1963).

Contrary to Reasoner's argument, however, Stone does not impose upon the states the full requirements of Townsend.¹  Mack v. Cupp, 564 F.2d 898, 901 (9th Cir. 1977). Rather, " [a]ll Stone v. Powell requires is the initial opportunity for a fair hearing. ... Such an opportunity for a fair hearing forecloses this court's inquiry, upon habeas corpus petition, into the trial court's subsequent course of action...." Caldwell v. Cupp, 781 F.2d 714, 715 (9th Cir. 1986).

Reasoner does not allege that Arizona fails to provide any opportunity for the consideration of new evidence. Indeed, he describes several procedures provided by the state for presenting new evidence--procedures which Reasoner followed. Instead, Reasoner merely asserts that the state courts were wrong in refusing to grant his requests that they consider his allegedly "new" evidence. This is not enough to show unavailability of a full and fair state suppression hearing. Therefore, we are unable to reach the merits of Reasoner's fourth amendment claim, as he has not overcome the bar of Stone v. Powell.

II

Reasoner also contends that he was denied his sixth amendment right to effective assistance of counsel at his suppression hearing.²  The test for ineffective assistance of counsel is whether counsel's decisions are within "the wide range of reasonable professional assistance." Strickland v. Washington, 466 U.S. 668, 689 (1984). There is a strong presumption that they are. Id. If a petitioner is able to meet this burden, he must then "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.

* Reasoner first complains of his trial counsel's decision to stipulate to the state's use of transcribed prior testimony of its witnesses, rather than insisting that the state call its witnesses to testify at the suppression hearing. However, this decision is easily within the wide range of discretion afforded defense counsel. Edgemon v. Lockhart, 768 F.2d 252, 255 (8th Cir. 1985) (stipulating to witness' police statement, rather than deposing the witness, deemed a matter of trial tactics); cf. Gustave v. United States, 627 F.2d 901, 905 (9th Cir. 1980) (deposing witnesses, without utilizing prior testimony, also a trial tactic). Reasoner's disagreement with trial counsel's tactical decision is not sufficient to show ineffective assistance. People of Territory of Guam v. Santos, 741 F.2d 1167, 1169 (9th Cir. 1984).

Nevertheless, Reasoner argues that his trial counsel's decision here was "unprofessional error." He notes that the transcribed testimony of the state's witnesses was first elicited during his codefendant's unsuccessful efforts to suppress evidence. Reasoner argues that his trial counsel should not have stipulated to the use of transcripts of state witnesses' testimony taken during a proceeding in which the state prevailed. However, Reasoner does not indicate whether his codefendant had advanced the same reasons for suppression as Reasoner. Furthermore, even assuming the same reasons for suppression, submitting the motion on transcripts was still a viable alternative, especially if the demeanor of the witnesses could be harmful, or if the witnesses might rebut the live testimony of others.

As another basis for his argument that stipulating to the transcribed testimony was professionally unreasonable, Reasoner alleges that the previous hearing "was conducted by an attorney who was subsequently disbarred...." However, Reasoner makes no specific allegation regarding the adequacy of this attorney's performance. So long as defense counsel could reasonably believe that the transcribed testimony had been reasonably elicited or defended--depending on the role of the purportedly disbarred attorney--Reasoner has no cause for complaint.

Thus, Reasoner has failed to show that trial counsel's decision allowing the state to use transcripts was outside the range of reasonably effective assistance.

B

Reasoner also charges that his trial counsel failed to investigate the possibility that Reasoner's arrest was pretextual. Reasoner, however, does not show how prejudice resulted from this purported error. See Strickland, 466 U.S. at 694. Reasoner argues that, if counsel had conducted a proper investigation, he would have discovered the police report which Reasoner later sought to have considered as "new" evidence. Reasoner contends that this report shows his arrest to be pretextual and, therefore, he was prejudiced by counsel's failure to investigate.

However, the district court concluded that the police report "falls far short of showing that petitioner's counsel was deficient in failing to investigate a pretext arrest theory." Because Reasoner points to nothing that contradicts the factual conclusions of the district court, he has not shown these conclusions to be clearly erroneous. Hayes, 784 F.2d at 1436. Thus, we cannot conclude that the outcome of the initial suppression hearing would have been any different had Reasoner's trial counsel investigated the possibility that Reasoner's arrest was pretextual.

For the same reason we reject Reasoner's arguments that his trial counsel should have cross-examined the state's witnesses regarding the police report, and that counsel should have called Colorado authorities to testify. Because the police report does not establish that Reasoner's arrest was pretextual, Reasoner fails to show the likely effect of cross-examining the state's witnesses, or deposing the Colorado authorities.³ 

AFFIRMED.