898 F. 2d 153 - Garland v. Davis

Before KENNEDY and ALAN E. NORRIS, Circuit Judges, and PAUL V. GADOLA, District Judge.*

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and the briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

Petitioner Garland, a Tennessee prisoner, filed an action for habeas corpus relief under 28 U.S.C. Sec. 2254 to challenge the constitutionality of a 1979 conviction for first degree murder and other felonies. The district court ultimately denied the relief sought and dismissed the petition. This appeal followed. The parties have briefed the issues, Garland proceeding without counsel.

Upon consideration, we find that the record and law support the district court's decision. Garland contends that his trial counsel's decision to inform prospective jurors of his criminal record during voir dire constituted ineffective assistance of counsel. One claiming ineffective assistance of counsel must demonstrate that counsel's performance was actually deficient and that tangible prejudice resulted. A strategic decision, made intelligently and from plausible options, is not constitutionally deficient. Strickland v. Washington, 466 U.S. 668, 687-96 (1984). The record reflects that Garland's trial counsel, unsure if Garland would testify in his own defense, attempted to minimize the impeachment effect of Garland's lengthy criminal history. This is not deficient performance under Strickland.

Accordingly, the district court's judgment is affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.