Unpublished Disposition, 902 F.2d 40 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 902 F.2d 40 (9th Cir. 1990)

Enrique MERCADO, Petitioner-Appellant,v.Robert G. BORG, Warden, et al., Respondent-Appellee.

No. 89-55076.

United States Court of Appeals, Ninth Circuit.

Submitted April 26, 1990.* Decided May 7, 1990.



Enrique Mercado, a California state prisoner, appeals pro se the district court's dismissal of his two U.S.C. § 2254 petitions for habeas corpus relief. Mercado contends on appeal that by not allowing him to testify at his trial, his lawyer's conduct constituted ineffective assistance of counsel. Liberally construing Mercado's petition, he also may be arguing that he was deprived of his right to testify as guaranteed by the sixth amendment. See Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988) (liberal construction of pro se pleadings).

The district court's dismissal of Mercado's petitions was proper. Because waiver of his right to testify is presumed from his failure to testify or notify the court of his desire to do so, Mercado does not state a cognizable claim that he was deprived of his right to testify. See United States v. Edwards, 897 F.2d 449 (9th Cir. 1990); United States v. Martinez, 883 F.2d 750, 756, 760-61 (9th Cir. 1989). Waiver is presumed even if he told his attorney that he wanted to testify because he is presumed to assent to his attorney's tactical decision not to have him testify. Id. at 755, 761.

Similarly, Mercado states no claim for ineffective assistance of counsel. Given the strong presumption that counsel's conduct is competent and given that a defendant's disagreement with his counsel's tactical decision cannot form the basis of a claim for ineffective assistance of counsel, the district court's dismissal was proper. See Strickland v. Washington, 466 U.S. 668, 689 (1984); Guam v. Santos, 741 F.2d 1167, 1169 (9th Cir. 1984).



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 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 Circuit Rule 36-3