Unpublished Disposition, 935 F.2d 273 (9th Cir. 1991)

MEMORANDUM^** 

Roderick Earl Daniels, a California state prisoner presently serving a sentence of 27 years to life for first-degree murder, appeals the district court's denial of his habeas petition. The petition was denied without an evidentiary hearing, and the appeal followed our grant of a certificate of probable cause pursuant to Fed. R. App. P. 22(b). Daniels has exhausted his state court remedies. The relevant allegation in the petition is the violation of Daniels' sixth amendment right to effective assistance of counsel, both at trial and on appeal before the California courts.

At his 1986 trial in San Fernando, Daniels' counsel objected to the racial composition of the 50-member, all-white venire as unrepresentative of a cross section of the community, in violation of the sixth amendment. None of the 21 additional veniremen called in response to the objection was of Daniels' race, black. Counsel did not pursue his objection according to the relevant provisions of the California Penal Code Secs. 1060-1063 (West 1985) (repealed 1988), after the trial court advised him that recent formal challenges to venires in that courthouse had failed. On appeal in state court, Daniels' counsel did not argue, as Daniels does on federal habeas, that trial counsel's decision not to pursue the objection manifested incompetence of constitutional magnitude. We review the denial of federal habeas relief without an evidentiary hearing de novo. Toomey v. Clark, 876 F.2d 1433, 1435 (9th Cir. 1989).

In a federal habeas case, the district court must grant an evidentiary hearing where the defendant alleges facts entitling him to relief and such a hearing would be necessary to prove those facts. Id. Daniels failed to allege such facts. To establish his ineffective assistance of counsel claim before the district court, Daniels had to indicate that deficient performances of his trial and appellate counsel prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Unfortunately, his showing of deficiency, based on trial counsel's failure to pursue his objection to the all-white venire, had little merit.

It is true that, at the time of the objection, California required courts to try the sufficiency of formal challenges to venires. See Cal.Penal Code Secs. 1061-1063 (West 1985) (repealed 1988). We also acknowledge that the racially homogeneous venire, on its face, gave counsel a legitimate reason to investigate whether Daniels had been deprived of his sixth amendment guarantee to a venire drawn from, though not necessarily composed of, a fair cross-section of the community. See Coleman v. McCormick, 874 F.2d 1280, 1283 (9th Cir.), cert. denied, 110 S. Ct. 349 (1989). Trial counsel has a duty to conduct an investigation, however, only when she has adequate cause to believe it will advance her client's interests. Strickland, 466 U.S. at 691. Daniels' trial counsel had no such cause. The failure of recent challenges to venires in the San Fernando courthouse provided strong evidence that a constitutional challenge to this all-white panel would also fail, a conclusion legitimated by the information's source--the trial court.

Because Daniels' trial counsel had an adequate basis for declining to pursue the objection, his appellate counsel's failure to raise the objection on appeal does not rise to the level of a constitutional denial of adequate counsel.

AFFIRMED.