Unpublished Disposition, 937 F.2d 611 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 937 F.2d 611 (9th Cir. 1991)

Richard Earl BARKER, Petitioner-Appellant,v.Carl ZENON, Respondent-Appellee.

No. 90-35438.

United States Court of Appeals, Ninth Circuit.

Submitted July 10, 1991.* Decided July 16, 1991.

Before GOODWIN, ALARCON and CYNTHIA HOLCOMB HALL, Circuit Judges.


MEMORANDUM** 

Richard Earl Barker appeals the district court's order granting respondent's motion for summary judgment denying his petition for habeas corpus. Petitioner argues that the writ should be granted because he did not receive effective assistance of counsel at trial as guaranteed by the Sixth Amendment. We affirm.

* This court reviews de novo a district court's summary judgment denying a habeas corpus petition. McKenzie v. Risley, 915 F.2d 1396, 1398 (9th Cir. 1990). Summary judgment is appropriate "unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1985).

An ineffective assistance of counsel claim must satisfy two requirements under Strickland v. Washington, 466 U.S. 668 (1984). First, the petitioner must show that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. This showing must overcome "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. Second, the petitioner must show that those errors were "so serious as to deprive the defendant of a fair trial, a trial whose result is unreliable." Id. at 687. To satisfy this requirement, petitioner must demonstrate a reasonable probability that the outcome would have been different had counsel not made the error in question. Id. at 694.

II

Barker alleges that his attorney was ineffective because she neither objected to the testimony of James McWilliams, his juvenile parole officer, nor cross-examined the witness. McWilliams was called by the prosecution to rebut Barker's testimony claiming intercourse with one woman was consensual and denying sexual activity with the other. The officer testified that he had known Barker for about a year and that he had met with the defendant "probably over nine" times. His assessment of the defendant's truthfulness was that "he's not reliable." The prosecution revealed neither McWilliams's occupation nor the nature of his relationship with Barker.

Barker contends that his trial attorney should have objected to the testimony of his juvenile parole officer under United States v. Calhoun, 544 F.2d 291 (6th Cir. 1976).1  In Calhoun, while the court did not reach the constitutional issue, it held that the trial judge had abused his discretion by admitting lay opinion testimony by the defendant's parole officer to identify the defendant in surveillance photos. The judges reasoned that such testimony should not be admitted unless the prosecution has initially demonstrated the necessity of using the parole officer rather than another witness.

Barker's contention does not withstand Strickland scrutiny. We cannot say that the failure to object was an "error" so serious as to implicate the Sixth Amendment. The Supreme Court has "long recognized ... that the Constitution guarantees criminal defendants only a fair trial and a competent attorney. It does not insure that defense counsel will recognize and raise every conceivable constitutional claim." Engle v. Isaac, 456 U.S. 107, 134 (1981). This is particularly true with a claim such as this which only had a questionable chance of success. We have not examined the validity of Calhoun. United States v. Butcher, 557 F.2d 666, 670 (9th Cir. 1977). However, in the fifteen years since the decision, no circuit has followed Calhoun, and two circuits have explicitly rejected it as a per se prohibition of testimony by parole officers. United States v. Farnsworth, 729 F.2d 1158, 1161 (8th Cir. 1984); United States v. Allen, 787 F.2d 933, 938 (4th Cir. 1986).

Even if Barker could show that the objection would have been successful, he fails to demonstrate that the parole officer's testimony was so prejudicial as to cast doubt on the reliability of the verdict. The victims gave lengthy and detailed testimony implicating Barker in the crime. It is extremely unlikely that in the absence of the brief testimony of McWilliams, a somewhat anonymous witness, Barker would have been acquitted.

Barker's cross-examination argument also fails under Strickland. He must "overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Barker fails to overcome the presumption that refraining from cross-examination was a tactical decision to avoid revealing that Barker was on juvenile parole. In addition, he fails to demonstrate that the alleged error "actually had an adverse effect on the defense." Id. at 693. Cross-examination could well have had a damaging effect on the defense by revealing that Barker was on juvenile parole.

III

Barker's additional arguments are meritless. He contends that his trial attorney failed to conduct an adequate investigation and to provide him with pretrial discovery, but fails to explain how these alleged errors prejudiced his case. While Barker contends that counsel failed to present character witnesses on his behalf, he neither identifies any potential character witnesses nor alleges how they might have helped his defense. Finally, Barker alleges that counsel failed to move for correction of alleged inaccuracies in the trial record. However, he does not demonstrate that correction of the trial record would have led to a reasonable probability of a different result.

AFFIRMED.

 *

The panel finds this case appropriate for submission without oral argument pursuant to 9th Cir.R. 34-4 and Fed. R. App. P. ??

 **

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 Cir.R. 36-3

 1

Respondent contends that Barker failed to raise this issue in his appeal to the Oregon Court of Appeals, and that he is thus barred from raising the issue in this appeal under the exhaustion requirement of 28 U.S.C. § 2254(b). In his brief to that court, however, Barker specifically claimed that his attorney "failed to object to juvenile parole officer Jim McWilliams testifying in this matter." [Appellant's Brief to Oregon Court of Appeals at 6.] Although Barker did not discuss the failure to object at length, he did discuss in detail the competence of his attorney regarding the testimony of the witness. For the purposes of this appeal, the issue was adequately raised