Unpublished Disposition, 927 F.2d 611 (9th Cir. 1991)
Annotate this CaseNo. 90-35162.
United States Court of Appeals, Ninth Circuit.
Appeal from the United States District Court for the District of Oregon; No. CV 89-6364-RE, James A. Redden, District Judge, Presiding.
D. Or.
AFFIRMED.
Before HUG and D.W. NELSON, Circuit Judges; and WALKER,** District Judge.
MEMORANDUM***
Federal prisoner William Jennings files a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2254, claiming ineffective assistance of counsel. Jennings, who was convicted of six counts of bank robbery and five counts of using a firearm to commit a crime of violence, argues that his attorney failed to obtain a curative instruction or adequately pursue on appeal an allegedly improper comment by the prosecutor during closing argument. Because Jennings' counsel provided reasonably effective assistance, we affirm the district court's denial of Jennings' motion.
The decision whether to grant or deny a petition for habeas corpus is reviewed de novo. United States v. Popoola, 881 F.2d 811, 812 (9th Cir. 1989). Further, a "claim of ineffective assistance of counsel is a mixed question of law and fact that is reviewed de novo." United States v. Birtle, 792 F.2d 846, 847 (9th Cir. 1986).
Strickland v. Washington, 466 U.S. 668 (1984), imposes a difficult burden on those claiming ineffective assistance of counsel. Jennings must prove both deficient performance by counsel and prejudice resulting from this deficient performance. Id. at 687. In order to avoid being deficient, a counsel need render "reasonably effective assistance." Id. Not only must " [j]udicial scrutiny of counsel's performance ... be highly deferential," Id. at 689, but "counsel is [also] strongly presumed to have rendered adequate assistance." Id. at 690. Even if the counsel's performance was deficient, such deficiency must have been prejudicial. Id. at 687. Prejudice occurs when there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. See Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990); Weygandt v. Ducharme, 774 F.2d 1491, 1493 (9th Cir. 1985).1
i. Reasonably Effective Assistance
In reviewing the record de novo, we are convinced that trial counsel did offer "reasonably effective assistance." Strickland, 466 U.S. at 687. Trial counsel pursued a wide range of options in appealing Jennings' conviction on six different grounds. The 9th Circuit affirmed the conviction in a ten-page memorandum disposition, which carefully addressed all six issues and showed a thorough job by counsel.
Jennings claims that his counsel was ineffective because he did not appeal one particular issue relating to the prosecution's closing argument or ask for a limiting instruction at the time. In closing argument, the prosecutor, referring to the bank robberies, stated, "And they only stopped when the FBI gets on to this gentleman." (G.E.R. 69).2 Jennings claims that there is no evidence in the record that bank robberies ceased in the geographical area of those alleged to have been committed by the defendant. We must agree with the district court judge in interpreting this statement to refer to "the particular series of robberies of which [Jennings] was accused," and not robberies in the area generally. (ER 29).3 Jennings' counsel challenged the prosecutor's comment in a motion for mistrial, which was denied. Thus, we are concerned only with counsel's decision not to raise this issue on appeal. Because an appeal of this issue would have resulted in an affirmance, counsel was not ineffective by failing to add this to the six points that he did appeal. As a result, in no way was Jennings denied effective assistance of counsel under Strickland.
ii. Prejudice
We need not even reach this second part of the test since Jennings did have effective assistance of counsel. Even were we to assume that the failure to appeal or to ask for a limiting instruction for the prosecutor's statement rendered counsel's assistance ineffective, we would find no prejudice. There is not a reasonable probability that the jury's verdict would have been altered by this one line in a 47-page closing argument. In fact, there seems to be no probability at all.
Conclusion
The district court's denial of appellant's petition is AFFIRMED.
The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4
The Honorable Vaughn R. Walker, United States District Court judge for the Northern District of California, sitting by designation
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3
Jennings would have us look at prosecutorial misconduct and apply the harmless error standard. In making such a request, he ignores that his claim, although about prosecutorial misconduct, is for ineffective assistance of counsel. If he were appealing a claim for prosecutorial misconduct, we would use harmless error, but ineffective assistance of counsel carries a higher standard
Government Excerpt of Record
Jennings' style, if not unique, was reasonably distinctive. In all six of the robberies he wore a ski mask and demanded "hundreds" from the tellers. In four he carried the same Luger, and in five he told everyone to lie down or get on the floor. Therefore, the prosecutor's use of "they" could clearly refer to this series of robberies
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