Unpublished Disposition, 927 F.2d 610 (9th Cir. 1986)

MEMORANDUM^** 

Petitioner Riley was arrested for firing a shotgun at his ex-girlfriend from twenty-five feet away. His shot missed and landed above her. Riley had purchased the gun that day. He was convicted of attempted murder, use of a firearm, assault with a deadly weapon, and shooting at an inhabited dwelling. He served four years and nine months in jail and is now on parole.

At trial, the state argued that Riley formed a premeditated plan to kill his ex-girlfriend and that the plan failed because Riley was too drunk and inexperienced with guns to hit his target. The state's weapons expert testified that an inexperienced shooter aiming from 25 feet away would miss a target by shooting above it.

Petitioner did not testify and his counsel did not present any witnesses. In closing argument, defense counsel argued that Riley only intended to scare the victim and that the prosecutor had failed to meet the burden of proving intent to commit murder.

Petitioner was represented by a public defender. Petitioner asked three times to have a new counsel appointed. His first request occurred prior to trial. The judge held a hearing on the request in which Riley complained that he was not getting adequate information from his lawyer and that his lawyer refused to file motions as requested. The lawyer responded that the motions were meritless, in his opinion. Counsel also told the judge that he had discussed the case with his client, was aware of his client's version of the events but had not yet prepared Riley for his testimony. The judge denied Riley's request for a new trial.

During the trial, Riley again requested a new lawyer, complaining that counsel would not introduce petitioner's post-arrest letters to the victim, had failed to hire an expert to refute the state's firearms expert, and had failed to ask the victim whether she fell from the doorway before or after the shotgun blast. The judge asked counsel to explain his actions and determined that counsel was making tactical decisions in petitioner's best interests. The judge again denied the motion.

Petitioner made a third motion for new counsel later that day, repeating his earlier complaints that the case was being mishandled. Petitioner added that he would refuse to testify because his counsel was handling the case improperly. The judge explained that petitioner should discuss with his counsel whether it would be in his best interests to testify. Counsel noted that he had discussed various strategies with petitioner throughout the case, that he had explained to petitioner that he had an absolute right to testify, and that as counsel, he did not disagree with petitioner's decision not to testify. The judge denied the motion for a new attorney.

Petitioner claims that the judge's refusal to grant his motion for a new attorney deprived him of effective assistance of counsel. Petitioner argues further that because he had rejected the public defender and the court had refused to appoint another attorney, petitioner in reality had no counsel at all in violation of his sixth amendment rights.

The Supreme Court has held that the sixth amendment does not guarantee a "meaningful relationship" between an accused and his attorney. Morris v. Slappy, 461 U.S. 1, 14 (1982). The Court noted further that the lack of a "meaningful relationship" between the accused and appointed counsel is not the equivalent of having no counsel at all. Id. at n. 6.

In addition, in Hudson v. Rushon we considered a case similar to petitioner's. There the defendant became so upset over his attorney's representation during the course of the trial that he told the court he would refuse to 1) testify, despite counsel's advice that his testimony was absolutely necessary, 2) participate in the trial, or 3) be present for the rest of the proceedings. See Hudson v. Rushon, 686 F.2d 826, 828, 829 (9th Cir. 1982) (Sneed, J.), cert. denied, 461 U.S. 916 (1983). After investigating defendant's allegations of ineffective assistance, the judge denied the motion for a new attorney. Id. at 828. This court rejected defendant's claim that he was no longer represented by counsel.¹ 

In short, the Hudson defendant, who had even less communication with his counsel or participation in his defense than defendant, was unable to show lack of counsel. Thus, under our precedents, petitioner clearly had counsel. The appropriate question is whether the judge's refusal to appoint new counsel denied petitioner effective assistance of counsel, not whether petitioner had no counsel at all. This court has held that the following factors are relevant to such a review: 1) whether the motion for new counsel was timely; 2) whether the court engaged in an adequate inquiry into the defendant's complaint; and 3) whether the attorney-client conflict was so great that it resulted in a total lack of communication preventing an adequate defense. United States v. Whaley, 788 F.2d 581, 583 (9th Cir. 1986), cert. denied, 479 U.S. 962 (1986).

Even if we assume, as the district court did, that all of defendant's motions were timely, petitioner still cannot prevail under these factors. Each time defendant moved for a new attorney, the judge inquired about the reasons for defendant's lack of confidence in his attorney, determined that the attorney and client were still communicating about the case, and determined that the attorney was acting in plaintiff's best interests. Thus, the trial judge engaged in an adequate inquiry.

The final factor concerns whether there was a total lack of communication which prevented an adequate defense. In this case, it is obvious that the attorney and client were still communicating. They may have disagreed over many things, but they were clearly communicating about the case. In short, petitioner cannot show that the judge erred in denying his motion.

Petitioner raises a variety of additional claims to prove ineffective assistance of counsel. The standards to prove ineffective assistance of counsel are quite high. Petitioner must show "(1) that counsel's actions were 'outside the wide range of professionally competent assistance,' and (2) that the defendant was prejudiced by reason of counsel's actions." United States v. Layton, 855 F.2d 1388, 1414 (9th Cir. 1988) (quoting Strickland v. Washington, 466 U.S. 668, 690 (1984)) cert. denied 489 U.S. 1046 (1989). To prove prejudice, petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. In addition, mere criticism of a trial tactic does not provide support for a charge of ineffective assistance. U.S. v. Ferreira-Alameda, 815 F.2d 1251, 1254 (9th Cir. 1986).

Petitioner complains that counsel refused to offer into evidence two letters which petitioner wrote to the victim after his arrest. Petitioner does not include copies of the letters in his appellate brief nor does he even hint at what might have been in them or why they might have been exculpatory. Petitioner claims that he cannot send copies of the letters because he doesn't not have them. There is simply no way the panel can consider this issue in the absence of evidence of what the letters contained.² 

Petitioner complains that counsel refused to introduce evidence to show that he frequently threatened the victim and that his threats on the day of the shooting were nothing out of the ordinary. As the district court pointed out, however, evidence of repeated threats against the victim could have strengthened the prosecution's case that petitioner acted in a premeditated fashion and that he intended to harm the victim.

Petitioner also complains that counsel failed to interview independent firearms experts or to present an expert to rebut the state's witness. Petitioner has not shown that an independent expert could have told counsel or the jury anything that would have changed the outcome of the trial. Thus, petitioner cannot show that he was prejudiced.

Plaintiff also claims that counsel improperly handled a potential defense that petitioner is an expert marksman and that the only way he could have missed such an easy target was if he intended to miss. Petitioner claims that his counsel should have investigated his marksmanship skills and should have presented testimony to the jury on his skills.

The California Court of Appeals found that petitioner "never informed counsel that he had experience with firearms," even after the state argued in its opening statement that petitioner only missed because he was a bad shot and he was drunk. See Order of Oct 27, 1986, People v. Riley, Nos. A030859, A034050, at 8 (Cal.Ct.App.). We are bound by factual determinations of the state courts and thus must assume that petitioner never told his counsel that he had experience with guns. United States v. Signori, 844 F.2d 635, 638 (9th Cir. 1988). In addition, there was nothing to suggest that petitioner was a marksman or even had significant experience with firearms.³  Given these facts, counsel had no reason to investigate the possibility of expert marksmanship and did not act inappropriately.

Petitioner also claims counsel failed to notice on the police report that petitioner bought two boxes of shells in two different sizes. Petitioner claims this piece of evidence would have shown that he could not have bought the gun with the single purpose of shooting his girlfriend, as the prosecution suggested. Again, petitioner cannot meet the prejudice test. Even if counsel had noticed the two different boxes of shells, this evidence could simply mean that 1) petitioner had not decided which ammunition would be best to shoot the victim with or 2) he had two purposes in mind--shooting the victim and going game hunting. Thus, buying two boxes of ammunition does not conclusively refute the claim that petitioner intended to shoot and kill his ex-girlfriend. We do not find a reasonable probability that this evidence would have changed the result.

Finally, petitioner complains that counsel did not ask the victim whether she fell away from the doorway before the shot was fired or after the shot was fired. First, counsel is in the best position to decide whether a particular question is appropriate on cross-examination or whether 1) there is no evidence to support the question; 2) it would simply antagonize the judge or jury; or 3) the answer might damage defendant's case. An individual decision like this is clearly a trial tactic decision and cannot form the basis for a successful ineffective assistance of counsel claim. In sum, petitioner has failed to meet the high burden necessary to show ineffective assistance of counsel or lack of counsel on any of his claims or on his claims as a whole.

The district court's decision is affirmed.

AFFIRMED.