865 F. 2d 266 - Usher v. B Vasquez

MEMORANDUM**

Nathaniel Usher, a California state prisoner, appeals, pro se, the district court's denial of his petition for a writ of habeas corpus. We review the district court's denial of a petition for habeas corpus relief de novo. Roberts v. Corrothers, 812 F.2d 1173, 1178 (9th Cir.1987).

Usher was convicted by a jury of felony-murder and was sentenced to 25 years to life in state prison. While at the police station prior to giving a taped statement about the robbery and killing, Usher spoke with his pastor, Lacey Hawkins.

Usher contends on appeal that his trial counsel's failure to request a bench warrant or to seek a continuance to locate the nonappearing but subpoenaed Hawkins deprived him of his right to the effective assistance of counsel because Hawkins would corroborate Usher's allegation that his confession was coerced. Usher also contends that his sentence constitutes cruel and unusual punishment. Finally, he contends denial of due process because he was convicted of felony-murder after the underlying felony robbery charge had been dismissed prior to trial.

To demonstrate ineffective assistance of counsel, a defendant must show both that his counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Iaea v. Sunn, 800 F.2d 861, 864 (9th Cir.1986). The prejudice must be such that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.... The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 693, 694.

Usher argues that his confession would have been found coerced and therefore inadmissible had Hawkins testified, because Hawkins would corroborate Usher's allegation that he confessed only because he was promised a manslaughter conviction and a three year prison term.1

On this claim the district court concluded that counsel's choice not to locate Hawkins was a reasonable professional judgment (CR 3:4). The court found "there was reason for [Usher's] counsel to believe that Hawkins' testimony would not greatly contribute to [Usher's] defense." Our independent review of the record leads us to the same conclusion.

In his taped statement to Sergeant Sitterud made on October 23, 1979, several days after the homicide and after he spoke with Hawkins, Usher confessed to the murder and stated no promises had been made to him. Usher contradicted this statement when he testified on January 2, 1981 at the hearing on the voluntariness of his confession. There he testified that "Mack" shot the victim and that he confessed in October 1979 because Hawkins told him "Sergeant Sitterud had said that I could get a manslaughter, and manslaughter was three years and that it would go easier for me."

Hawkins' testimony, as Usher represents it would be, contradicts Usher's October 23, 1979 taped statement. Also, the October statement contradicts Usher's January 2, 1981 testimony. Moreover, Sergeant Sitterud's testimony that he had not made any promises to Usher either directly or through Hawkins contradicts Usher. Finally, Hawkins' letter does not support Usher's contention that manslaughter was promised or that the confession was coerced. On these facts, counsel's failure to request a bench warrant or to request a continuance to secure Hawkins presence was a reasonable decision and not error.

Even if we found counsel's performance deficient, the effect did not prejudice Usher. Usher fails to show that, but for counsel's failure to bring Hawkins to court, the result would have been different. There was sufficient evidence that the confession was voluntary and that Usher was guilty of felony-murder.

"The test for cruel and unusual punishment is whether the penalty is so out of proportion to the crime committed that it shocks a balanced sense of justice." United States v. Tolias, 548 F.2d 277, 279 (9th Cir.1977).

On this claim the district court stated the record demonstrated that petitioner participated in a robbery during the course of which the victim was killed (CR 3:4). The court concluded that petitioner's allegation that he was not prosecuted for robbery did not change the court's conclusion that the sentence was not disproportionate to the crime committed (CR 3:4-5).

Usher mistakenly relies on People v. Dillon, 34 Cal.3d 441, 668 P.2d 697 (1983) which considered facts very different from those present here. Dillon was an unusually immature high school student with no prior record who panicked during a robbery when he felt his life was in danger. His testimony was given substantial weight by the judge and jury. None of the other principals in the crime received a sentence greater that three years probation with one year in county jail. In reducing the first degree murder conviction to second degree murder, the court specifically limited its holding to the facts of the case.

Usher has several prior felony convictions. The district court noted Usher changed his story every time he told it. He participated in the robbery of the victim who was shot twice in the head at close range.

We do not find the sentence shocks our sense of justice.

Analysis of Usher's due process claim requires a recital of the procedural history of the petition before us. On August 21, 1985, Usher filed a writ of habeas corpus in federal court in which he alleged three grounds for relief: (1) denial of effective assistance of counsel; (2) his sentence constituted cruel and unusual punishment; and (3) denial of due process when he was tried and convicted of felony-murder when the underlying felony charge of robbery was dismissed before trial. The petition was denied by the district court on the merits by order dated April 18, 1986. On appeal this court remanded the case to the district court to determine whether Usher had exhausted his state court remedies (No. 86-2145). On remand the district court determined that Usher had exhausted his claims for ineffective assistance of counsel and cruel and unusual punishment but had not exhausted his due process claim. On October 27, 1987, the district court dismissed without prejudice the petition for failure to exhaust state judicial remedies on the due process claim.

The district court advised Usher that he could either (1) exhaust state remedies on the due process claim and return to the district court with all three claims, or (2) return immediately to the district court with his exhausted claims of ineffective assistance of counsel and cruel and unusual punishment and bring the due process claim after he had exhausted state remedies. The court stated if Usher later returned with his third exhausted claim, the court would not dismiss it as an abuse of the writ.

The district court concluded Usher elected the second alternative. We agree. The petition before us clearly states a claim for ineffective assistance of counsel. The second claim is framed as follows: "Felony-murder as applied to petitioner violated 8th amend. against cruel and unusual punishment." The district court dismissed these two claims on the merits.

As a threshold matter, we must determine whether Usher is barred from arguing on appeal his felony-murder due process claim because he elected to drop that unexhausted claim from his petition.

Usher did not allege a due process claim in the petition before us. Indeed, the inclusion of this unexhausted claim in an earlier petition resulted in the petition's dismissal under the rule of Rose v. Lundy, 455 U.S. 509 (1981) (federal habeas petitions that contain both exhausted and unexhausted claims, "mixed petitions," must be dismissed). The due process claim is not properly before this court not only because it is unexhausted, but also because it was not raised in this petition in the district court. See Int'l Union of Bricklayers and Allied Craftsman Local Union No. 20 v. Martin Jaska, 752 F.2d 1401, 1404 (9th Cir.1985). We therefore decline to address this issue.

The judgment of the district court is AFFIRMED.