OpenJurist

919 F2d 144 Falls v. Brinkman

919 F.2d 144

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Augustus William FALLS, Petitioner-Appellant,
v.
Eugene BRINKMAN, Warden, Respondent-Appellee.

No. 89-16480.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 27, 1990.*
Decided Nov. 29, 1990.

Before WALLACE, DAVID R. THOMPSON and TROTT, Circuit Judges.

1

MEMORANDUM**

2

Augustus William Falls, a Nevada state prisoner, appeals pro se the district court's denial of his 28 U.S.C. Sec. 2254 habeas petition. Falls contends that (1) he was denied his right to cross-examine a prosecution witness, and (2) he was denied effective assistance of counsel because his attorney did not request a jury instruction on a lesser offense. We review de novo, Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir.1989), and affirm.

3

In 1985, a jury convicted Falls of two counts of sexual assault with the use of a deadly weapon. During cross-examination of the victim, Falls's counsel sought to ask whether she had retained a personal injury attorney to sue the hotel where the assault occurred. The trial court sustained the state's objection that this question was not relevant.

4

Falls's contention that the trial court's refusal to allow this question violated his sixth amendment right to confront the witness is meritless. "[T]he defendant does not have the unrestricted right to cross-examine adverse witnesses on any matter desired. Initially the cross-examination must be shown to be relevant. The determination of relevancy is within the discretion of the trial court." Skinner v. Cardwell, 564 F.2d 1381, 1388 (9th Cir.1977), cert. denied, 435 U.S. 1009 (1978). Because the possibility that the victim might bring a civil suit against the hotel was of slight, if any, relevance to the sexual assault charges against Falls, the trial court did not abuse its discretion by refusing to allow the question. See id. Therefore, the district court did not err in finding that Falls was not denied his right to confront the witness.

5

Falls's contention that he received ineffective assistance of counsel at trial also fails. To demonstrate ineffective assistance, a defendant must show that counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Falls argues that his attorney's performance was deficient because he failed to request a jury instruction on the lesser offense of battery with the use of a deadly weapon. This argument is meritless because "[d]efense counsel need not request instructions inconsistent with its trial theory." Butcher v. Marquez, 758 F.2d 373, 377 (9th Cir.1985). In considering Falls's petition for post-conviction relief, the state court held an evidentiary hearing at which Falls's attorney testified that after discussing the case with Falls, they concluded that the best defense was consent of the victim. Falls's attorney also testified that requesting an instruction on battery would have been inconsistent with both his trial strategy and Falls's testimony at trial. Falls's disagreement with his attorney's strategic decision cannot form the basis of an ineffective assistance of counsel claim. See Guam v. Santos, 741 F.2d 1167, 1169 (9th Cir.1984). Accordingly, the district court correctly determined that the performance of Falls's attorney was not deficient and that Falls therefore had not stated a claim of ineffective assistance of counsel. See Strickland, 466 U.S. at 687.

6

AFFIRMED.

**

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

*

The panel unanimously finds this case suitable for disposition without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4. Accordingly, Falls's request for oral argument is denied. Falls's motion to strike portions of the appellee's answering brief also is denied