Unpublished Disposition, 927 F.2d 608 (9th Cir. 1990)

MEMORANDUM^** 

Robin Sherwood Eastman appeals the district court's denial of his petition for writ of habeas corpus.

* Eastman contends that both his trial and appellate counsel were ineffective. In both cases, Eastman must show that the counsel's performance was deficient and that the deficient performance prejudiced him. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990); Tinsley v. Borg, 895 F.2d 520, 531-32 (9th Cir. 1990), pet'n for cert. filed, No. 90-5737 (Sept. 12, 1990). There is a strong presumption that counsel's conduct was reasonable and that she or he exercised acceptable professional judgment in all significant decisions. Hughes, 898 F.2d at 702.

II

In running the various sentences consecutively, the sentencing judge noted that Eastman had threatened to spank the victim if she told anyone what Eastman had done to her. Eastman raises a two-fold challenge to the use of the threat: first, he complains that his counsel should have challenged the threat allegation because it was untrue and, second, the threat allegation should have been challenged because it could only be used to impose a consecutive sentence with regard to count five of the information.

Neither contention has merit. While it is true that the use of false information at sentencing violates due process, see United States v. Columbus, 881 F.2d 785, 787 (9th Cir. 1989), due process considerations require only that sentencing information be supported by some minimal factual basis. Id. (quoting United States v. Petitto, 767 F.2d 607, 611 (9th Cir. 1985)). Here, the factual basis for the information was the victim's own testimony on redirect examination. Since the information was established at trial by sworn testimony, counsel's objection to this information would have been pointless.

The victim testified that Eastman made the spanking threat after the abusive act charged in count five of the information. Accordingly, Eastman reasons that the information cannot be used as a basis for running sentences consecutively except for charged count. This argument is hypertechnical and defies common sense. Regardless of when the threat was actually made, it is clear that it was intended to scare the victim into silence about all of Eastman's lewd and lascivious conduct. Eastman's counsel was not ineffective by failing to challenge this point.

III

Under California law, a defendant's lack of remorse may not be used as a sentencing factor where the defendant has denied guilt and the evidence of guilt is conflicting. See People v. Holguin, 213 Cal. App. 3d 1308, 1319, 262 Cal. Rptr. 331, 337 (1989). In the present case, the sentencing court articulated nine aggravating factors, finding only one mitigating factor. However, one of the nine aggravating factors was Eastman's lack of remorse. Eastman now complains of his counsel's failure to object to this factor.

The district court found that, assuming that counsel was deficient in this one regard, there was nonetheless no reasonable probability that Eastman would have received a different sentence and, accordingly, Eastman had not satisfied the second prong of Strickland. We agree. Because of the additional eight aggravating factors, most of which standing alone would support the sentence imposed, we cannot say that there is a reasonable likelihood that Eastman's sentence would be different had the sentencing court not considered Eastman's lack of remorse. See Strickland, 466 U.S. at 695 ("When a defendant challenges a death sentence ..., the question is whether there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.").

IV

Eastman contends that his trial counsel was ineffective by failing to present certain mitigating circumstances to the sentencing court. Specifically, Eastman asserts that available job rehabilitation benefits should have been brought to the attention of the sentencing court. Likewise, Eastman complains that his counsel failed to present testimony of friends and family members to the court.

These allegedly mitigating factors pale in comparison to the aggravating circumstances. Thus, Eastman's counsel focused his efforts on rebutting the serious aggravating factors by arguing that Eastman was not a violent person and that the victim was not permanently harmed. We cannot second-guess the strategic decisions of counsel. See Strickland, 466 U.S. at 690-91. In any event, given the severity of the aggravating factors, we cannot say that any potential error was likely to have affected the sentencing outcome. See id. at 695.

V

Finally, Eastman contends that his appellate counsel was ineffective by failing to raise on appeal the very errors of trial counsel set forth above. Since we have concluded that trial counsel was not ineffective for failing to assert these issues, it follows that appellate counsel also cannot be faulted. Moreover, appellate counsel has no obligation to raise every non-frivolous issue requested by a defendant particularly where, as here, the issue did not have a reasonable likelihood of changing the eventual sentencing outcome. See Miller v. Keeney, 882 F.2d 1428 (9th Cir. 1989) ("In many instances, appellate counsel will fail to raise an issue because she foresees little or no likelihood of success on that issue; indeed, the weeding out of weaker issues is widely recognized as one of the hallmarks of effective appellate advocacy.").

The district court's denial of Eastman's petition for writ of habeas corpus is

AFFIRMED.