Unpublished Disposition, 902 F.2d 38 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 902 F.2d 38 (9th Cir. 1990)

Michael Salvador CRUZ, Pettitioner-Appellant,v.Daniel S. McCARTHY, Respondent-Appellee.

No. 88-15700.

United States Court of Appeals, Ninth Circuit.

Submitted April 24, 1990.* Decided April 27, 1990.

Before TANG, NELSON and O'SCANNLAIN, Circuit Judges.


MEMORANDUM** 

Michael Salvador Cruz appeals pro se the district court's denial of his 28 U.S.C. § 2254 habeas petition. Cruz alleges that at his trial for the rape of his daughter, his attorney failed to render him effective assistance of counsel. We have jurisdiction pursuant to 28 U.S.C. § 1291 and review de novo the district court's denial of the petition. Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989).1  The effectiveness of counsel is a mixed question of law and fact also reviewed de novo. Iaea v. Sunn, 800 F.2d 861, 864 (9th Cir. 1986).

To demonstrate ineffective assistance of counsel, a defendant must show that the counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient performance is demonstrated when "counsel made errors so serious that the counsel was not functioning as the 'counsel' guaranteed the defendant by the sixth amendment." Id. There is a strong presumption that counsel's conduct falls within the "wide range of reasonable professional assistance." Id. at 689. Prejudice is established if there is a reasonable probability that but for the counsel's error, the result of the proceeding would have been different. Id. at 694.

Cruz contends that his attorney rendered him ineffective assistance of counsel in four ways.

First, Cruz alleges that his attorney failed to present test results showing that no sperm was found on the victim. Because the results were presented to the jury, the attorney's conduct was not deficient. See Strickland, 466 U.S. at 687.

Second, Cruz alleges that his attorney failed to call expert witnesses, who apparently would have testified that because sperm was not found on the victim, she could not have been raped. Sperm matching Cruz's blood type, however, was found on the victim's underwear. In addition, a prosecution witness testified that it was not unusual to find no traces of sperm on the victim because medical tests were not performed until 24 hours after the rape. Thus, the attorney's failure to call experts does not fall short of constitutional standards. Id. at 687.

Moreover, Cruz's main defense at trial, which he supported by alibi witnesses, was that he never committed the crime. His attorney's failure to present expert witnesses on the negative sperm tests might have been a reasonable tactical decision not to present a secondary defense that would dilute his primary defense. Cruz's disagreement with his attorney's tactical decision cannot form the basis for a claim of ineffective assistance of counsel. See Guam v. Santos, 741 F.2d 1167, 1169 (9th Cir. 1984).

Third, Cruz alleges that his attorney should have presented an "impossibility" defense that due to pain from a back injury, Cruz was physically incapable of raping his daughter. Given that pain does not constitute impossibility, his attorney's tactical decision not to present a second defense was not ineffective assistance of counsel. See id.

Fourth, Cruz contends that his counsel failed to compel a psychiatric evaluation of the victim, as permitted by Ballard v. Superior Court, 64 Cal. 2d 159, 176-77, 410 P.2d 838, 49 Cal. Rptr. 302 (1966). Because psychiatric evaluations are permitted only if necessary, such as in the absence of corroborating evidence, and because ample physical evidence supported the rape charge, the district court correctly concluded that the attorney's conduct was not deficient. See id; see also Strickland, 466 U.S. at 687.2 

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

 1

Although Cruz was discharged from parole on April 18, 1986, we have jurisdiction because he was on parole at the time he filed his petition. See Jones v. Cunningham, 371 U.S. 236, 243 (1963)

 2

Cruz also raises issues on appeal that he did not include in his habeas petition in district court, and we decline to consider them. See Willard v. California, 812 F.2d 461, 465 (9th Cir. 1987)