Unpublished Disposition, 900 F.2d 262 (9th Cir. 1987)

MEMORANDUM^* 

FACTS

Thomas Goldstein was convicted by a jury in Los Angeles County Superior Court of murder in the first degree. He was sentenced to prison for twenty-seven years to life. His appeal and his petitions for writs of habeas corpus in the state court system were unavailing. He then filed a Petition for Writ of Habeas Corpus in the United States District Court for the Central District of California, the centerpiece of which was a claim that in his trial he was denied effective assistance of counsel.¹  In particular, he argued that he had been the innocent courtroom victim of a bogus "jailhouse confession" concocted by a pre-trial cell mate, a man named Henry Fink. The cell mate was an acknowledged and experienced police informant/drug addict who admitted his testimony against Goldstein was designed to curry favor with the police. At the time, the jailhouse informant was facing six months in custody, and he hoped to lighten his load by providing evidence against Goldstein.

In his claim of ineffective assistance of counsel, Goldstein alleged, among other things, that his counsel failed adequately to attack Fink's credibility. Goldstein cited several possible avenues of inquiry not pursued by his counsel as evidence of a lack of diligence. Mr. Goldstein's pro se petition was referred to a magistrate who--without conducting an evidentiary hearing--prepared a report and recommendation that the petition be denied. The matter was then submitted to the district court pursuant to 28 U.S.C. § 636(b) (1) (B) and Central District General Order 194. The district court entered a judgment denying Goldstein's petition. Goldstein filed a timely appeal, repeating his allegation that he was the victim of ineffective assistance of counsel.

STANDARD OF REVIEW

The decision whether to grant or deny a petition for habeas corpus is reviewed de novo. United States v. Popoola, 881 F.2d 811, 812 (9th Cir. 1989); Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989) (28 U.S.C. § 2254(d) petition). "To the extent it is necessary to review findings of fact, the clearly erroneous standard applies." Norris, 878 F.2d at 1180.

"A habeas corpus petitioner is entitled to an evidentiary hearing if he has alleged facts which, if proven, would entitle him to relief and he did not receive a full and fair evidentiary hearing in a state court." Id. The decision to deny an evidentiary hearing is reviewed for abuse of discretion. United States v. Watts, 841 F.2d 275, 177 (9th Cir. 1988).

ANALYSIS

Because of the well-known problems with jailhouse informants and their documented propensity to fabricate "confessions" in return for favors, and because no evidentiary hearing has been conducted in this matter, this court obtained the transcript of Mr. Goldstein's trial, which has been examined cover to cover and word by word. Moreover, Mr. Goldstein was permitted to argue his cause by telephone from state prison.

Our examination of the trial transcript leads us to conclude that Mr. Fink's testimony is suspicious. Nevertheless, both his testimony and his credibility were assaulted vigorously--and with obvious preparation and skill--by Goldstein's attorney. When measured by the well-known yardstick provided by Strickland v. Washington, 466 U.S. 668 (1984), we find that Goldstein's representation by counsel passes constitutional muster. Not only did his counsel cross-examine Fink with substantial energy, but he produced as an impeaching witness another cell mate, Steve Borowski, who was present at the time of the alleged confession. Mr. Borowski testified in essence that Goldstein did not confess to Fink, but merely told Fink what he was "in for." Trial Transcript pp. 713-755. Goldstein's testimony was consistent with that of Borowski. From this, it was apparently argued that the confession was fabricated by Fink using Goldstein's non-incriminating description of the charges against him as the source of detail. This was an intelligent line of attack, and counsel pursued it with energy and proficiency. The simple act of locating Mr. Borowski and securing his testimony is considerable evidence of counsel's diligence.

As to the precise "failures" of his counsel to pursue other avenues regarding Fink, i.e., information from Ivey and Watkins and information from Fink's parole file, we find those under the circumstances to be insignificant. At best, they dealt with peripheral matters not likely to have any evidentiary impact. Moreover, there is nothing in the record to suggest that pursuing these avenues would have borne fruit. In this respect, and as to all other matters raised on appeal by Mr. Goldstein, we agree with the analysis of Magistrate Reichman who filed his written Report and Recommendation on February 2, 1987, a report adopted in its entirety by Judge Tevrizian on February 27, 1987.²  We find no need for an evidentiary hearing in this matter.

AFFIRMED.