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940 F2d 1536 United States v. Ki

940 F.2d 1536

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
Jay Jay KI, a/k/a Jum Ja Ki, Jum Ja Reutter, Defendant-Appellee.

No. 90-10483.

United States Court of Appeals, Ninth Circuit.

Submitted July 29, 1991.*
Decided Aug. 2, 1991.

Before FARRIS, ALARCON and THOMAS G. NELSON, Circuit Judges.

1

MEMORANDUM**

2

Jay Jay Ki appeals her conviction following a jury trial for unlawful procurement of naturalization, in violation of 18 U.S.C. Sec. 1425(a). Ki contends that she was denied effective assistance of counsel. We have jurisdiction under 28 U.S.C. Sec. 1291 and affirm.1

3

To demonstrate ineffective assistance, a defendant must show that her attorney's performance was deficient and that the deficient performance prejudiced her defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient performance is demonstrated when "counsel made errors so serious that the counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. There is a strong presumption that counsel's conduct falls within "the wide range of reasonable professional assistance." Id. at 689. Prejudice is established if there is a reasonable probability that but for the counsel's error, the result of the proceeding would have been different. Id. at 694. A tactical decision by counsel with which the defendant disagrees cannot form the basis of a claim of ineffective assistance of counsel. Guam v. Santos, 741 F.2d 1167, 1169 (9th Cir.1984).

4

Here, Ki claims that her trial counsel's performance constituted ineffective assistance because he did not appear to be competent, let alone prepared for trial. Ki identifies a plethora of "errors," ranging from her lawyer's inabilities to raise objections and examine adverse witnesses to the delivery of his closing statement. In addition, Ki asserts that her trial counsel should have questioned the prospective jurors more extensively about their experiences with the naturalization process. We have examined Ki's contentions and find them to be completely without merit and vituperative.

5

Trial counsel's responses to evidentiary objections and his cross examination style were well within the "wide range of reasonable professional assistance." See Strickland, 466 U.S. at 689. Trial counsel's decisions not to impeach the credibility of each government witness and not to question the prospective jurors further could be considered "sound trial strategy" and is not a basis for a claim of ineffective assistance of counsel. See id.; Santos, 741 F.2d at 1169.

6

Moreover, Ki has failed to demonstrate any prejudice resulting from trial counsel's alleged errors. At trial, the government introduced the testimony of the immigration officer who interviewed Ki, as well as the testimony of Alaskan police officers who verified her arrests. Ki has not shown that a different outcome would be "reasonably probable" but for trial counsel's alleged failure to impeach these witnesses. See Strickland, 466 U.S. at 694. Further, although trial counsel did not specifically question each prospective juror about his or her citizenship, all jurors expressed under oath that they could be fair and impartial given the trial's subject matter.

7

AFFIRMED.

*

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

**

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

1

Normally, we do not entertain a claim for ineffective assistance of counsel on direct appeal. See United States v. Houtchens, 926 F.2d 824, 828 (9th Cir.1991). Nevertheless, since Ki has already served her sentence, she cannot assert a claim pursuant to 28 U.S.C. Sec. 2255. Meyers v. Parole Commission, 813 F.2d 957, 958 (9th Cir.1987)