Unpublished Disposition, 908 F.2d 978 (9th Cir. 1990)

MEMORANDUM^** 

Fidel Carrillo Cardenas was convicted with conspiracy and possession with intent to distribute a controlled substance under 21 U.S.C. § 841 and Sec. 846. No direct appeal was taken. In September 1986 Cardenas filed an application for writ of habeas corpus. The district court held an evidentiary hearing finding Cardenas was not denied his Sixth Amendment right to effective counsel. Cardenas appeals.

STATEMENT OF FACTS

Cardenas admitted he committed the crime but pled not-guilty to the charges. He planned to use the defense of duress alleging both he and his young son were threatened. Cardenas claimed he reported the death threats to the Downey Police Department. Cardenas' lawyer, Stanley Greenberg, however, was unable to find supporting evidence for Cardenas' claim. He subpoenaed the Police Department but could not locate documentation showing Cardenas reported the threats. Greenberg was also unable to locate any witnesses who could corroborate Cardenas' claim that his and his son's lives were threatened. The Record indicates that Cardenas nevertheless wanted to testify on his own behalf as to the death threats.

During the trial Cardenas informed the district court he would not testify. In the jury's presence, the judge asked Cardenas if he understood he had the right to testify and was waiving that right. Greenberg moved for a mistrial and a new trial because of the court's questioning.

Cardenas alleges Greenberg committed the following errors during trial that resulted in the denial of his Sixth Amendment right to effective assistance of counsel:

1. In the opening statement, Greenberg stated that the evidence would show that Cardenas delivered the heroin for one reason only: "because the life of himself and his son had been immediately threatened earlier that very day." Because Cardenas subsequently decided not to testify and Greenberg was unable to locate corroborating evidence, no evidence was admitted concerning the duress defense. Cardenas argues that Greenberg essentially admitted that he, Cardenas, committed the crime.

2. He argues that Greenberg must not have had his client's interest in mind when at a side-bar conference Greenberg noted that there had been some disagreement with respect on how to continue the trial and then stated that Cardenas had decided to enter a guilty plea.

3. Greenberg did not deliver a closing argument on behalf of Cardenas.

4. Greenberg did not properly inform Cardenas of a justifiable basis for appeal.

DISCUSSION

To prevail on an ineffective assistance of counsel claim, the defendant must (1) show that the attorney's errors or omissions were so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment and (2) affirmatively establish prejudice as a result of the attorney's conduct. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). 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 the defendant demonstrates that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. Id.

Although the Supreme Court has refused to set out exact requirements, it has offered general guidelines for determining what steps counsel must take to render effective assistance. Counsel owes the client a duty of loyalty and a duty to advocate the defendant's cause. Counsel must investigate and consult with the defendant on important developments in the course of prosecution. Counsel must bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process. Id. at 688, 690-91. When the client alleges that counsel has failed to fulfill these obligations, the court must determine whether in light of all the circumstances the identified acts or omissions were outside the wide range of professionally competent assistance. Id. at 690.

1. Opening Statement Concerning Duress Defense.

Greenberg determined that the defense of duress was "the most logical and (probably only) defense available." He discussed the defense on several occasions prior to the trial with Cardenas. He also subpoenaed the Downey Police Department and interviewed witnesses in an attempt to locate supporting evidence. Despite being unable to locate corroborating evidence, the Record indicates Cardenas still intended to testify.

It was reasonable for Greenberg to inform the jury of the threats and to explain their relevance if Cardenas intended later to testify about them. Cardenas argues because Greenberg could not find corroborating evidence he should have either waived or reserved opening statement. The Ninth Circuit, however, has determined that the decisions concerning opening statements are merely trial tactics and will not constitute ineffective assistance of counsel. United States v. Rodriguez-Ramirez, 777 F.2d 454, 458 (9th Cir. 1985); United States v. Murray, 751 F.2d 1528, 1535 (9th Cir.), cert. denied, 474 U.S. 979 (1985).

2. Statement at Side-Bar.

Cardenas argues that the statement to the district court that Greenberg and he disagreed whether to proceed with trial violated the attorney's responsibility to further his client's cause. Cardenas does not elaborate on why such a statement was so professionally irresponsible. He also concedes that the statement was not prejudicial. Appellant's Opening Brief at 29. Conduct that is not prejudicial is not ineffective. Strickland, 466 U.S. at 687.

3. Waiver of Closing Argument.

Cardenas argues there is no possible reason for Greenberg's failure to present a closing statement and arguing all reasonable inferences from the evidence in the record. Cardenas, however, does not offer any information that Greenberg could have presented to the jury. He simply states that although it could have been trial strategy to decline to give an closing argument it "clearly is not standard practice." Even if we assumed Greenberg's failure to give a closing statement was error, Cardenas must show there is a reasonable likelihood the result would have been different. Strickland, 466 U.S. at 693-4 (defendant must show errors "actually had an adverse effect on the defense"). Mere criticism of a tactic or strategy is not in itself sufficient to support a charge of inadequate representation. United States v. Popoola, 881 F.2d 811, 812 (9th Cir. 1989) (petitioner must make specific allegation which if were true would entitle him to relief); Gustave v. United States, 627 F.2d 901, 904 (9th Cir. 1980). Cardenas fails to make such a showing. Cardenas simply states that declining to give a closing statement is unconventional but does not indicate prejudice.

4. Failure to File a Notice of Appeal.

Cardenas finally argues that there would be reason to appeal the decision in light of the district court's statement in front of the jury concerning Cardenas' failure to testify. Cardenas alleges that he did not realize there was any basis for appeal and that if he understood that the judge had committed an error he would have appealed.

The defendant, not the lawyer, must decide whether or not to exercise the right to appeal. Jones v. Barnes, 463 U.S. 745, 751 (1983) (the accused has the ultimate authority to make certain fundamental decisions regarding the case, including whether or not to take an appeal); American Bar Standards for Criminal Justice 4-5.2, 21-2.2 (2d ed. 1980) (the decision whether to appeal must be the defendant's own choice). Counsel, however, must fulfill their professional obligation to ensure that the client makes an informed choice on whether to appeal. Marrow v. United States, 772 F.2d 525, 530 (9th Cir. 1985). Failure to do so is ineffective assistance. Id.

Cardenas' was informed several times of his right to appeal. The district court informed him and Greenberg wrote a letter before the time expired stating that if he did want to file an appeal he should contact Greenberg immediately.

Cardenas alleges he was not aware there was a basis for the appeal. The record, however, indicates otherwise. Greenberg testified at the evidentiary hearing that he informed Cardenas that he believed the judge erred by questioning him before the jury. Moreover, Greenberg filed a motion for mistrial and a motion for a new trial alleging such error. It is implausible that at the time of trial Cardenas was unaware of this basis for appeal. Cf. Siciliano v. Vose, 834 F.2d 29, 30-31 (1st Cir. 1987) (court held that despite defendant's claim in habeas petition that he was unaware of right to testify his conduct indicated otherwise).

The totality of the evidence indicates Cardenas was not denied effective assistance of counsel. The district court's judgment, therefore, is

AFFIRMED