Opinion
D.C. No. CV-94-00956-AHS
Editorial Note:This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Submitted Dec. 6, 1999.
Appeal from the United States District Court for the Central District of California, Alicemarie H. Stotler, District Judge, Presiding.
Before B. FLETCHER, KOZINSKI, and THOMPSON, Circuit Judges.
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. Even if Gomez's answer to Dawson's habeas petition was deficient, the district court did not abuse its discretion in choosing to adjudicate Dawson's claim on the merits. See Williams v. Calderon, 52 F.3d 1465, 1483 (9th Cir.1995) (any grievance based on the state's inadequate response to a habeas petition "must be with that decision, not the filings that preceded it"). The same is true of Dawson's claim that the district court erred by adjudicating the three habeas claims for which he never received Gomez's answers.
2. Brower's strategic decisions not to try to impeach Kearns; not to call Dawson's ex-wife, brother and former paramours; to dissuade Dawson from testifying; to delay Dawson's psychiatric examination; and to play the audio tapes in their entirety before the jury are presumed to be proper under Strickland v. Washington, 466 U.S. 668, 690 (1984). Even were we to assume some of these choices were questionable, they were not prejudicial in light of the overwhelming evidence against Dawson.
3. Under Hughes v. Borg, 898 F.2d 695 (9th Cir.1990), a lawyer can make concessions in order to gain credibility with the jury. See id. at 703. Brower did so here by saying that he would not make excuses for Dawson or defend what he had done, but would only see to it that he was represented and that the evidence was properly interpreted. Contrary to Dawson's allegations, this did not constitute abandonment.
King v. Strickland, 748 F.2d 1462 (11th Cir.1984), is not to the contrary. In that case, an inexperienced lawyer was held to have provided ineffective assistance when he failed to present available mitigating evidence and stated that he reluctantly represented his client because of the heinous allegations against him. Id. at 1464. Additionally, the defendant in King was convicted on the basis of circumstantial evidence; evidence that "however strong leaves room for doubt that a skilled attorney might raise to a sufficient level that, though not enough to defeat conviction, might convince a jury and a court that the ultimate penalty should not be exacted, lest a mistake may have been made." Id.
In King, the lawyer's statements left the impression that he believed his client did not have a valid defense. This is very different from Brower's statement, which was a tactical retreat to minimize the sting of certain aspects of the government's case--such as Dawson's confession--that could not be ignored. Unlike King's lawyer, Brower was quite vigorous in mounting a defense in those areas where he could credibly do so. This certainly does not amount to abandonment.
4. An improper jury instruction requires reversal only when the resulting conviction violates due process. Masoner v. Thurman, 996 F.2d 1003, 1006 (9th Cir.1993). "A single instruction is not viewed in isolation, but in the context of the overall charge." United States v. Harrison, 34 F.3d 886, 889 (9th Cir.1994) (citing United States v. Marsh, 894 F.2d 1035, 1040 (9th Cir.1989)). There was no due process violation here because the trial judge instructed the jurors to consider Dawson's mental state, even though he deviated from the precise wording of the California Jury Instruction.
5. Finally, there was no error in the district court's rejection of Dawson's remaining claims. Insofar as Dawson has not demonstrated that Kearns's testimony was perjured, he cannot succeed on a claim that the prosecutor knowingly used perjured testimony by putting her on the stand. And since he has not demonstrated any prejudicial error, Dawson's cumulative effect argument has no merit.
AFFIRMED.