Unpublished Disposition, 920 F.2d 936 (9th Cir. 1990)

MEMORANDUM^** 

In 1983 appellant Phillip K. Johns was convicted of murdering his wife. Johns appealed to the Oregon Court of Appeals which reversed his conviction based on the erroneous admission of "other crimes" evidence. The Supreme Court of Oregon reversed the court of appeals and reinstated the conviction. Johns failed to obtain relief in state post conviction proceedings and subsequently filed a petition for habeas corpus in the United States District Court for the District of Oregon. Johns argued before the district court that the admission of "other crimes" evidence in his trial violated his due process rights, and that he was denied the effective assistance of counsel at both the state trial and supreme court levels. The district court summarily rejected Johns' claims. We affirm.

DISCUSSION

We review the decision whether to grant or deny a petition for habeas corpus de novo. United States v. Popoola, 881 F.2d 811, 812 (9th Cir. 1989).

2. The District Court's use of Summary Judgment

The district court's use of summary judgment to dispose of this case was proper. A habeas petitioner is entitled to an evidentiary hearing only "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." Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989). Appellant does not dispute that the facts of this case have been fully and fairly litigated in state court.

The Oregon Supreme Court held that evidence as to Johns' assault of his first wife was properly admitted to prove intent under ORE 404(3). The court also found that evidence showing appellant pointed an empty gun at a neighbor in the presence of his wife was erroneously admitted but resulted in harmless error "beyond any reasonable doubt." State v. Johns, 301 Or. 535, 725 P.2d 312, 327 (1986).

Appellant argues the introduction of this evidence violated his due process rights. In Dowling v. United States, 110 S. Ct. 668 (1990), the United States Supreme Court squarely faced the question whether the erroneous introduction of other crimes evidence violated the due process test of "fundamental fairness." In Dowling, the third circuit had held that evidence showing a defendant had committed a previous crime was erroneously admitted under Federal Rule of Evidence 404(b) but resulted in harmless error. Id. at 671. The third circuit refused to analyze the error under a due process test. Id. The Supreme Court affirmed, recognizing that the introduction of such evidence "has the potential to prejudice the jury" but reasoned that " [t]he question, however, is whether it is acceptable to deal with the potential for abuse through non-constitutional sources like the Federal Rules of Evidence, or whether the introduction of this type of evidence is so extremely unfair that its admission violates 'fundamental conceptions of justice.' " Id. at 674 (citation and footnote omitted). The court held the erroneous introduction of testimony relating to other crimes does not rise to the level of a due process violation. Id. In light of Dowling, we reject appellant's claim that the admission of other crimes evidence violated his due process rights.

Appellant argued before the district court that he was denied the effective assistance of counsel in his state court trial. Defendant listed numerous actions by his trial counsel, such as counsel's failure to obtain expert testimony to counter the state's expert testimony, as supporting his allegation.

Following Strickland v. Washington, 466 U.S. 668 (1984), this court uses a two-step inquiry to determine whether the assistance of counsel has been ineffective: 1) a defendant must show his or her counsel's actions were outside the wide range of professionally competent assistance; and 2) the defendant must show he or she was prejudiced by reason of counsel's actions. United States v. Litteral, 910 F.2d 547, 554 (9th Cir. 1990). Moreover, we have noted: "Strickland requires a showing that the outcome would have differed if other counsel had been employed ... the court must defer to counsel's strategic decisions and view the situation from counsel's perspective." United States v. Appoloney, 761 F.2d 520, 525 (9th Cir.), cert. denied, 474 U.S. 949 (1985). The district court properly concluded appellant was not denied the effective assistance of counsel at his trial. There is no indication appellant was prejudiced by his counsel's actions or that the outcome would have differed with different counsel.

Appellant also argues he was denied his right to counsel when his case was before the Oregon Supreme Court. We agree with the district court that appellant had no constitutional right to additional counsel. Appellant asked to represent himself at oral argument. He was without counsel because he refused to work with and continually threatened to sue his appointed counsel who had successfully obtained a reversal of appellant's conviction at the court of appeals. The court had before it a comprehensive brief, filed by counsel before his withdrawal, carefully setting forth appellant's legal claims; the court also had access to the opinion of the court of appeals ruling in favor of appellant. At most, additional counsel could have filed an optional reply brief. These facts indicate appellant was in no way denied "meaningful" or "adequate" access to the Oregon Supreme Court as required by the Constitution. Ross v. Moffitt, 417 U.S. 600, 610-611, 614-615 (1974).

AFFIRMED.