917 F. 2d 566 - Brown v. Rg Borg

No. 90-55067.

United States Court of Appeals, Ninth Circuit.

Before BEEZER and TROTT, Circuit Judges, and CROCKER,** District Judge.

MEMORANDUM***

Brown appeals from order dismissing his petition for writ of habeas corpus, 28 U.S.C. Sec. 2254, with prejudice. Brown argues that the district court erred in ruling that he was not denied his Sixth Amendment right to a jury drawn from a fair cross-section of the community by drawing panels from voter registration lists; that the district court erred in ruling that the California Supreme Court did not have to apply its rule in People v. Harris, 36 Cal.3d 36 (1984) retroactively; and the district court erred when it ruled that he was not denied effective assistance of trial and appellate counsel.

Brown was not denied his Sixth Amendment right to a jury drawn from a fair cross-section of the community by drawing panels from voter registration lists. Duren v. Missouri, 439 U.S. 357, 361, 364, 366, 367 (1979); Taylor v. Louisiana, 419 U.S. 522, 528 (1975); United States v. Brady, 579 F.2d 1121, 1133-1134 (9th Cir.1978), cert. denied, 439 U.S. 1074 (1979). The random selection of jury panels from voter registration lists has been approved in United States v. Brady, supra, because no group is systematically excluded as required by Duren v. Missouri, supra.

The California Supreme Court was not required to apply its Harris rule retroactively. Griffith v. Kentucky, 479 U.S. 314 (1987); Wainwright v. Stone, 414 U.S. 21, 23-24 (1973); LaRue v. McCarthy, 833 F.2d 140, 142-143 (9th Cir.1988); Northrup v. Alexander, 642 F.Supp. 324, 327 (NDCal 1986); People v. Myers, 43 Cal.3d 250 (1987). Wainwrigth v. Stone, supra, held that States are free to apply their interpretation of State law prospectively and California has chosen to do that in People v. Myers, supra.

Brown was not denied effective assistance of counsel, as he failed to affirmatively establish prejudice as a result of the tactical decisions of defense and appellate counsels. Strickland v. Washington, 466 U.S. 668, 690, 694, 697 (1984); Murray v. Maggio, 736 F.2d 279, 282 (5th Cir.1984); Rodriquez v. Ricketts, 798 F.2d 1250, 1253 (9th Cir.1986); Baumann v. United States, 692 F.2d 565, 572 (9th Cir.1982).

AFFIRMED.