Opinion
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 (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Resubmitted Aug. 13, 1998.
Appeal from the United States District Court for the Central District of California David V. Kenyon, District Judge, Presiding.
Before LAY , GOODWIN, and SCHROEDER, Circuit Judges.
The Honorable Donald P. Lay, Senior United States Circuit Judge for the Eighth Circuit, sitting by designation.
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.
California state prisoner Jesus F. Marroquin appeals the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his conviction for second degree murder and assault with a deadly weapon. Submission of this case was deferred pending the disposal of the petition for rehearing in Robbins v. Smith, 125 F.3d 831 (9th Cir.1997). An amended opinion was filed August 13, 1998. Robbins v. Smith, Nos. 95-56640, 96-55063, 1997 WL 928263 (9th Cir. August 13, 1998).
As a threshold matter, we note that the sections of AEDPA relevant to this case do not apply because Marroquin filed his § 2254 petition in the district court in April 1995, prior to the Act's effective date of April 24, 1996. See id. at *2.
Marroquin contends that the "no merit" brief filed by his appointed counsel violated his constitutional rights under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Anders requires appointed counsel to either provide active and vigorous representation or, after concluding that any appeal would be wholly frivolous, request leave to withdraw and file a brief that identifies "anything in the record that might arguably support the appeal." Id. at 744. "[A]n issue is 'arguable' when it has some potential for success, meaning some possibility of a result requiring reversal or modification of the judgment." Robbins, 1998 WL 928263, at *5 (quoting People v. Johnson, 123 Cal.App.3d 106, 109, 176 Cal.Rptr. 390 (1981)).
Here, the two issues advanced by Marroquin as "arguable" do not meet even this very low threshold of viability. First, the challenge to the admissibility of a prior conviction is moot, because the conviction was not admitted. Second, the trial court did not even arguably abuse its discretion in determining that trial counsel did not exercise due diligence in procuring a witness's testimony so that the witness's prior testimony could not be used. See People v.. Sanders, 11 Cal.4th 475, 523, 46 Cal.Rptr.2d 751, 905 P.2d 420 (Ct.App.1995). Moreover, the failure to secure that witness's testimony for the second trial did not arguably constitute ineffective assistance of counsel because the facts strongly suggest that the testimony would have been different at the second trial. Thus, the attorney's conduct was strategic and not ineffective under Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1994). Accordingly, there were no arguable issues on appeal warranting a new appeal for Marroquin. See Robbins, 152 F.3d 1062, 1997 WL 928263 (approval of such an appeal when arguable issues were raised).
AFFIRMED.