919 F2d 144 Cox v. Bunnell

919 F.2d 144

Unpublished Disposition

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Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

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No. 89-55960.


United States Court of Appeals, Ninth Circuit.

Submitted on Briefs Aug. 10, 1990.*
Decided Nov. 30, 1990.


Before REINHARDT and LEAVY, Circuit Judges, and KING**, Senior District Court Judge.




Petitioner Ernest Lee Cox was convicted of first-degree murder and sentenced to life imprisonment without parole following a state court trial. He appeals from the district court's denial of his petition for a writ of habeas corpus. We affirm.

I. Probable Cause


Cox contends that the police lacked probable cause to arrest him. We need not decide whether this issue is cognizable on habeas corpus review, see Stone v. Powell, 428 U.S. 465, 492-95 (1976), because even if it is reviewable there can be no dispute that there was probable cause for the arrest. The arresting officers testified that Orlando Lee gave them a tip which led to the arrest of Cox and his co-arrestee, Cedrick Parker. Lee testified that he had been robbed at gunpoint while working at a gas station earlier that evening. Lee gave the officers a partial license plate number and said that the car driven by the robbers was green. Police apprehended Cox and Parker at a gas station approximately 30 minutes later. Lee, who was brought to the scene, identified Parker and Cox as the robbers, and the police officers arrested the pair. These facts provided the police with probable cause to arrest Cox.

II. Invasion of Privacy


Cox also contends, as he did below, that the police violated his right to privacy when they recorded a conversation he had with Parker in the police car. In Hudson v. Palmer, 468 U.S. 517, 527-28, (1984), the Supreme Court held that a prisoner does not have a reasonable expectation of privacy in a prison cell. This court has held that prison officials are free to record conversations between prisoners or between a prisoner and a visitor. United States v. Hearst, 563 F.2d 1331, 1343-49 (9th Cir.1977), cert. denied, 435 U.S. 1000 (1978); Williams v. Nelson, 457 F.2d 376, 377 (9th Cir.1972). In light of these precedents, it is evident that an arrestee has no reasonable expectation of privacy in his conversation in a police car. We therefore reject Cox's privacy claim.

III. Cox's Miranda Claim

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Cox contends that his out-of-court statements were obtained in violation of his Miranda rights. He claims that police deception with respect to the results of a test for gunpowder on Cox's hands rendered his statement involuntary. However, such police tactics, although deceptive, are not unconstitutional. See Frazier v. Cupp, 394 U.S. 731, 739 (1969) (holding that a police officer's false statement that suspect's accomplice had confessed to committing murder was not sufficiently deceptive to render suspect's confession involuntary).


Following Cox's initial custodial statement, the police told Cox they wished to tape his statement. Cox agreed to cooperate. The police reread Cox his rights. When asked if he wanted a lawyer, Cox responded, "I don't think it would do no good." Officer Bodenstedt said, "Okay." Cox then asked, "Would it do any good?" Bodenstedt did not reply, but asked Cox whether he had been threatened or whether any promises had been made to him. Cox said no.


Cox argues that his taped statement to police was inadmissible because he equivocally invoked his right to counsel. However, our decision in Norman v. Ducharme, 871 F.2d 1483 (9th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1483 (1990), requires a contrary result. We therefore hold that Cox's taped statement was not obtained in violation of Miranda.

IV. Sufficiency of the Evidence


Cox contends that there was insufficient evidence to support his conviction because the conviction was based on the uncorroborated testimony of his accomplice. Whether or not such uncorroborated testimony would be legally sufficient to support a conviction, it is simply not true that Parker's testimony was uncorroborated. Parker testified that Cox shot and killed the victim. Later, the laboratory results showed gunpowder residue on Cox's hands but not on Parker's. Further, the medical examiner testified that he had found two bullet wounds in the victim's head, a "contact wound" on her chest, an abrasion on her lower lip, and a bruise on the back of her hand. These wounds corresponded to the description in Parker's testimony.1 Reliance on Parker's testimony presents no constitutional problem.

A. Cox's Double Jeopardy Claim


Cox contends that the superior court placed him twice in jeopardy, in violation of the fifth amendment of the United States Constitution. The superior court found Cox guilty of murder as to count I, and after a recess indicated that the murder was of the first degree. Both of these pronouncements were made prior to sentencing, as required by California law.2 We find no constitutional violation.

VI. Ineffective Assistance of Counsel


Cox contends that he received ineffective representation in his state appeal.3 He relies principally on the issues set forth above to support this argument, claiming that his attorney's failure to raise these issues on appeal was ineffective assistance of counsel. A defendant claiming ineffective assistance of counsel must demonstrate (1) that his counsel's actions were "outside the wide range of professionally competent assistance," and (2) that the defendant was prejudiced by reason of his counsel's actions. Strickland v. Washington, 466 U.S. 668, 687-690 (1984). Cox's argument fails in light of the second prong of the Strickland test. Because Cox would not have benefitted from the assertion of meritless claims in the state court proceeding, he has failed to show prejudice. See Rodriguez v. Ricketts, 798 F.2d 1250, 1254 (9th Cir.1986).

VII. Perjured Testimony


Cox contends that the lower courts misapplied the law in refusing to conclude that Parker perjured himself, but even if the facts he alleges were proven, they would not constitute perjury. Cox mistakes the law of perjury for that of credibility. He claims that the superior court erred in believing Parker's testimony rather than his own. This is simply a matter of credibility which the judge decided at trial. See Anderson v. City of Bessemer, 470 U.S. 564, 573 (1985) (special deference is paid to a trial court's credibility findings).

VIII. Equal Protection


Cox appears to complain about the state collateral review process. He argues that he was denied equal protection of the laws under the fourteenth amendment of the United States Constitution because he was treated differently from similarly situated defendants. Because Cox did not raise this issue in the lower courts, we may not reach it here. See Nevius v. Sumner, 852 F.2d 463, 470 (9th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 1972 (1989).

IX. Request for an Evidentiary Hearing


Finally, Cox argues that the district court erred by refusing to grant an evidentiary hearing on several of the foregoing issues. "A habeas corpus petitioner is entitled to an evidentiary hearing if he has alleged facts which, if proven, would entitle him to relief and he did not receive a full and fair evidentiary hearing in a state court." Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir.1989). However, since each of the issues Cox raises turns on a question of law rather than fact, a hearing would have served no purpose.


Accordingly, we AFFIRM.


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


Hon. Samuel P. King, Senior District Court Judge, United States District Court for the District of Hawaii, 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 Circuit Rule 36-3


Parker testified that he bit the victim's hands when she grabbed the gun from him. After both Parker and Cox had sexual intercourse with the victim in an alley, Cox straddled the victim, held the gun to her chest, and fired one shot. He then fired two shots into her head and one into her right upper thigh. The victim died from these wounds


Section 1192 of the California Penal Code reads:

Upon a plea of guilty, or upon conviction by the court without a jury, of a crime or attempted crime distinguished or divided into degrees, the court must, before passing sentence, determine the degree of the crime or attempted crime of which the defendant is guilty shall be determined to be of the lesser degree. (emphasis added)


In an earlier proceeding, Cox asserted that he received ineffective assistance of counsel at trial because his attorney advised him to waive his right to a jury trial. However, in his petition for habeas corpus in the district court, Cox confined his ineffective assistance of counsel claim to the performance of his attorney during the state appellate procedure. Nor has Cox renewed his assertion of ineffective trial counsel in his submissions to this court. Thus we need not consider that issue here