Opinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Petitioner, who had been convicted in state court of rape, forcible oral copulation, use of a firearm, and supplying narcotics to a minor, sought federal habeas corpus relief. The United States District Court for the Northern District of California, Ronald M. Whyte, J., denied petition. Petitioner appealed. The Court of Appeals held that counsel for petitioner was not ineffective in making concessions during closing statement that defendant had both engaged in sexual acts with victim and provided victim with narcotics, and recommending that jury consider lesser included offense of statutory rape, in light of substantial evidence against defendant, and his impeached testimony.
Affirmed.
Appeal from the United States District Court for the Northern District of California Ronald M. Whyte, District Judge, Presiding.
Before CANBY, KOZINSKI and RYMER, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
Jacques Landry appeals pro se the district court's denial of his 28 U.S.C. § 2254 petition challenging his convictions for rape, forcible oral copulation, use of a firearm and supplying narcotics to a minor. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo the denial of a section 2254 petition, Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999), and we affirm.
Page 651.
Landry contends that trial counsel's concessions in her closing statement that Landry both engaged in sexual acts with the victim and provided the victim with narcotics constituted ineffective assistance of counsel. Although counsel conceded some guilt and recommended that the jury consider the lesser included offense of statutory rape, we cannot, in light of the substantial evidence against Landry and his impeached testimony at trial, conclude that such an approach was outside the range of sound trial strategy. See Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); cf. Harris v. Wood, 64 F.3d 1432, 1437-38 (9th Cir.1995) (counsel's closing arguments were "beyond any discernible trial strategy, and were outrageous").
Because the state court's decision affirming counsel's effectiveness was not clearly erroneous, the district court properly denied Landry's habeas petition. See 28 U.S.C. § 2254(d); Van Tran v. Lindsey, 212 F.3d 1143, 1159 (9th Cir.), cert. denied, 531 U.S. 944, 121 S.Ct. 340, 148 L.Ed.2d 274 (2000).
AFFIRMED.