Unpublished Disposition, 933 F.2d 1014 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 933 F.2d 1014 (9th Cir. 1991)

Paul John HAMRY, Petitioner-Appellant,v.William BEERS, Superintendent, Oregon Parole Violators'Prison, Respondent-Appellee.

No. 90-35656.

United States Court of Appeals, Ninth Circuit.

Submitted May 9, 1991.* Decided May 13, 1991.

Before JAMES R. BROWNING, GOODWIN and POOLE, Circuit Judges.


Paul John Hamry, an Oregon state prisoner, appeals the district court's denial of his 28 U.S.C. § 2254 for habeas corpus relief. We review de novo, Watts v. Bonneville, 879 F.2d 685, 687 (9th Cir. 1989), and affirm.

Hamry contends that he received ineffective assistance of counsel because his attorney failed to adequately cross examine state witnesses. Specifically, Hamry contends that " [a]lthough testimony of the State's witnesses was replete with inconsistencies in times and places, the State's witnesses were often confused, and a number of the State's witnesses were less than reputable, trial counsel did virtually nothing to impeach them." This contention lacks merit.

To demonstrate ineffective assistance, a defendant must show that his attorney's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient performance is demonstrated when "counsel made errors so serious that the counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 689. There is a strong presumption that counsel's conduct falls within "the wide range of reasonable professional assistance." Id. Prejudice is established if there is a reasonable probability that but for the counsel's error, the result of the proceeding would have been different. Id. at 694. A tactical decision by counsel with which the defendant disagrees cannot form the basis of a claim of ineffective assistance of counsel. Guam v. Santos, 741 F.2d 1167, 1169 (9th Cir. 1984).

Hamry's brief summarizes the state witnesses' testimony and suggests how the cross examination of those witnesses might have been handled differently. Nevertheless, Hamry's opinion that the cross examination could have been more thorough does not constitute ineffective assistance of counsel. See Guam, 741 F.2d at 1169. Furthermore, Hamry has failed to establish any prejudice from the alleged inadequate cross examination by his trial counsel. See Strickland, 466 U.S. at 694. Accordingly, the district court properly dismissed this claim.

Hamry also contends that his trial counsel was ineffective in failing to call two witnesses. This contention lacks merit. Trial counsel's failure to call George Redwine, Hamry's co-defendant, and John McLaughlin, whose affidavit is not necessarily credible or exculpatory of Hamry, may have been a reasoned tactical move. As such, it does not form the basis for a claim of ineffective assistance of counsel. See Guam, 741 F.2d at 1169. Accordingly, the district court properly dismissed this claim.

Hamry's contention that his trial attorney was ineffective because he failed to uncover a "deal" between the prosecution and Douglas L. Taylor, a key witness for the prosecution, lacks merit. Hamry has not demonstrated that any "deal" existed and the district court properly dismissed this claim.

Hamry also challenges the effectiveness of counsel on three other grounds: counsel's failure to reveal on cross examination that Taylor's brother was an Oregon police officer, counsel's failure to fully explore the prosecution's offer of immunity to Taylor, and the State's failure to correct the perjurious testimony of its key witness. We have reviewed these claims and hold them to be meritless.

Hamry also contends that there was insufficient evidence to support his conviction because the evidence presented at his trial "consisted of a confusing and inconsistent series of accounts that should not be permitted to sustain a criminal conviction." This contention lacks merit.

Evidence is sufficient to support a verdict if, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt of each essential element of the crime. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). Hamry's challenges to the allegedly inconsistent testimony does not demonstrate that the evidence was insufficient to support his conviction. Accordingly, the district court properly dismissed the claim.



The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Circuit R. 36-3