Unpublished Disposition, 940 F.2d 668 (9th Cir. 1984)

No. 90-16615.

United States Court of Appeals, Ninth Circuit.

Before CHOY and SNEED, Circuit Judges, and KELLEHER,^**  District Judge.

MEMORANDUM^*** 

Petitioner appeals from a denial of his petition for write of habeas corpus by the district court. We affirm.

FACTS AND PROCEEDINGS

Petitioner was convicted of kidnapping, aggravated assault, and attempted sexual assault and was sentenced to concurrent sentences of twenty-one, fifteen, and fifteen years. He is currently incarcerated. Petitioner, upon seeing the victim walking home alone, stopped his car, seized the victim, threatened her with a knife, and forced her into his car. He stated that he intended to rape and kill her as he had done to others before. The victim escaped by wrestling the knife away from the petitioner and left one of her shoes behind in the car.

Screaming for help, she ran into a busy street where she encountered a police officer. As she spoke to this officer, she saw the defendant drive by and identified him to the officer. A description was issued and petitioner was stopped several minutes later by a patrol car. Shortly thereafter, the victim and the officer arrived at the scene of the stop and the victim immediately identified the petitioner as the assailant. Also, the victim's show lay in plain view in the petitioner's car, and his hands bore fresh cuts and scratches.

Petitioner was taken to the Tucson Police Department and was given the Miranda warnings. He waived his rights and gave a taped statement. An intoxilyzer test showed that he had a .21 blood alcohol level after the incident.

The trial court denied the suppression of the taped statement. At trial, the victim again identified the petitioner as her attacker. The jury convicted the petitioner as indicated above. On direct appeal, the conviction was upheld. No appeal with the Arizona Supreme Court was filed. Petitioner obtained new lawyers and in the state post-conviction proceeding claims virtually identical to those raised in this proceeding were made. Relief was denied by the state trial court. Appeals from this disposition were taken to the Arizona Court of Appeals and the Arizona Supreme Court. Relief was denied. Petitioner then filed a petition in the federal district court which also denied relief. Our review of the district court's denial of the petition is de novo and petitioner has satisfied the exhaustion of state remedies requirement.

DISCUSSION

A. Ineffective Assistance of Counsel at Trial

Petitioner asserts that his trial counsel's performance was ineffective because of (1) inadequacy of the motion to suppress statements, (2) failure to request an intoxication instruction, (3) failure to adduce expert testimony on the general effects of intoxication, (4) failure to explore an insanity defense, (5) failure to adequately investigate the victim's background, (6) failure to allow petitioner to testify, (7) failure to object to the admission of the victim's excited statements to the police, and (8) failure to object to the prosecutor's closing statements. He also argues that his attorney was in some manner hampered by the possibility of a contempt citation.

We have reviewed the record and conclude that none of these actions indicate that a different verdict would have resulted, but for petitioner's counsel's alleged ineffectiveness. See Strickland v. Washington, 466 U.S. 668, 690, 694 (1984).

Petitioner alleges that because of his intoxication his waiver of his Miranda rights was involuntary, unknowing, and unintelligent. Our duty is to examine the facts to determine whether the petitioner gave a voluntary, knowing, and intelligent waiver. See Mikel v. Thieret, 887 F.2d 733, 739 (7th Cir. 1989). We have done so, and conclude that he did. We agree with the state trial judge that petitioner was "not so intoxicated as to be unable to understand the rights that were apparently read to him, nor was he so intoxicated as to be unable to intelligently waive them." Transcript of October 10, 1984, at 101. Therefore, we must reject petitioner's claim.

C. Other Alleged Reasons to Grant the Petition

Petitioner asserts four additional reasons why his petition should be granted. These are as follows: the trial court erred when it declined to offer an instruction defining sexual intercourse; the trial court erred when it allowed the victim to testify that she was pregnant; the trial court erred in communicating with the jury without notifying counsel; the trial court erred by offering its own testimony at petitioner's post-conviction Rule 32 hearing. We have examined each of these claims carefully and conclude that none of them have merit. No definition of sexual intercourse is required in a case such as this. The victim's pregnancy was not in evidence. It was raised only in the opening statements of counsel, which are not evidence. The response of the trial court to the jury was one that he would have given even had there been consultation with counsel. It changed no instructions and clearly did not alter the result of the trial. Finally, the comments of the judge at the Rule 32 proceeding, who was the same judge as presided at petitioner's trial, did not constitute testimony as a witness. Petitioner suffered no prejudice from the comments from the judge to which he refers.

AFFIRMED.