OpenJurist

917 F2d 566 Brown v. Rg Borg

917 F.2d 566

Unpublished Disposition

Leonard BROWN, Pettitioner-Appellant,
v.
R.G. BORG, et al., Respondent-Appellee.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

1

No. 90-55067.

2

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 5, 1990.*
Decided Nov. 5, 1990.

3

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

4

MEMORANDUM***

5

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.

6

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.

7

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.

8

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).

9

AFFIRMED.

*

The panel unanimously finds this case suitable for disposition without oral argument pursuant to 9th Cir.R. 34-4 and Fed.R.App.P. 34(a)

**

Honorable Myron D. Crocker, United States District Judge, Eastern District of California, 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