Opinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a).
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Appeal from the United States District Court for the Northern District of California Ronald M. Whyte, District Judge, Presiding.
Before RYMER, T.G. NELSON, and WARDLAW, 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.
Terry Woolsey, a California state prisoner, appeals the denial of his 28 U.S.C. § 2254 petition. We have jurisdiction pursuant to 28 U .S.C. § 2253, and we affirm.
Because Woolsey filed his section 2254 prior to April 24, 1996, the AEDPA does not apply and we address all of the claims he presented to the district court. See Jeffries v. Wood, 114 F.3d 1484, 1489 (9th Cir.1997).
Prosecutorial Misconduct
Woolsey contends that his due process rights were violated because the victim offered perjured testimony and the prosecutor was aware of the perjured testimony. This contention lacks merit because Woolsey has failed to demonstrate that the victim offered perjured testimony. See Pavao v. Cardwell, 583 F.2d 1075, 1077 (9th Cir.1978). Further, even if the victim gave perjured testimony, Woolsey failed to demonstrate that the prosecutor knew that the testimony was false. See id.
Police Misconduct
Woolsey contends that the police engaged in misconduct because the interviewing officer modified Woolsey's statement to the police, threw away the handwritten notes that the officer made during the victim's interview, and destroyed the original tape of his police interview. This contention lacks merit because Woolsey has failed to allege that there was potentially exculpatory information in the officer's notes or the original tape of Woolsey's police interview. See Mitchell v. Goldsmith, 878 F.2d 319, 322 (9th Cir.1989) (stating that failure to preserve evidence that is potentially useful to a defendant's case does not violate due process unless the failure to preserve evidence is done in bad faith). Further, Woolsey has failed to demonstrate that the officer acted in bad faith. See id. Accordingly, his police misconduct claim fails.
Miranda Violation
Woolsey contends that his taped interview with the police should have been suppressed at trial because he was in custody at the time of the interview and he never received a Miranda warning. This contention lacks merit because Woolsey was not "in custody" during his police interview.
Here, Woolsey voluntarily went to the police station, was told he was free to leave several times, and the interrogation room was unlocked at the time of the interview. Thus, Woolsey was not entitled to a Miranda warning. See California v. Beheler, 463 U.S. 1121, 1125 (1983) (holding that defendant was not in custody for purposes of Miranda despite police questioning him in the station and considering him the main suspect); Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (per curiam) (stating that an officer has a duty to administer Miranda warnings "only where there has been such a restriction on a person's freedom as to render him 'in custody" ').
Judicial Misconduct
Woolsey contends that the trial judge was biased because the judge stated that "[i]t doesn't make any difference as to whether or not the officer is telling us the truth ...." and this bias denied Woolsey a fair trial. This contention lacks merit because the record demonstrates that the trial court's statement was made within the context of whether the subjective intent of the officer was irrelevant to the determination of when a suspect is in custody for purposes of a custodial interrogation. Thus, Woolsey has failed to demonstrate bias and his judicial misconduct claim fails. See Lang v. Callahan, 788 F.2d 1416, 1418 (9th Cir.1986) (stating that this court examines a judge's allegedly improper statements in the context in which they are made).
To the extent Woolsey contends that the district court engaged in judicial misconduct, we conclude that this claim is meritless.
Ineffective Assistance of Trial Counsel
Woolsey contends that he received ineffective assistance of trial counsel because his attorney failed to do anything when Officer Hinkley and the victim allegedly lied on the witness stand. Woolsey's contention lacks merit because he has failed to demonstrate that the officer or the victim lied on the stand. Thus, he has failed to establish prejudice. See Strickland v. Washington, 466 U.S. 668, 694 (9th Cir.1984).
Woolsey's contention that his trial counsel was ineffective because he refused to have the tape of his interview with the police examined for alterations is meritless because he has failed to establish that there were any exculpatory statements in the tape that were allegedly altered. See id. To the extent Woolsey alleges that his counsel was ineffective for failing to object to the admission of the tape because it was false, this is also meritless. His attorney made a motion to exclude the taped interview between Woolsey and Officer Hinkley and challenged whether the tape represented the entire interview with Woolsey. Thus, Woolsey has failed to demonstrate that his attorney's actions fell outside the wide range of reasonable professional assistance. See id. at 690.
Woolsey contends that his attorney was ineffective for failing to present evidence that another identified individual sexually assaulted his daughter. This contention lacks merit because he has not provided any evidence concerning the individual or demonstrating that the individual committed the offenses against his daughter. See id. at 694.
Finally, Woolsey contends that his trial attorney was ineffective because he said that he was not going to call any witnesses or put on a defense. Even if this contention were true, Woolsey has failed to allege or provide any evidence concerning a witness that possesses exculpatory information. See James v. Borg, 24 F.3d 20, 26 (9th Cir.1994) (stating that conclusory allegations are not enough to warrant habeas relief). Accordingly, his final ineffective assistance of counsel claim fails. See Strickland, 466 U.S. at 694.
Ineffective Assistance of Appellate Counsel
Woolsey contends that his appellate counsel was ineffective because he failed to raise the issue of Officer Hinkley's misconduct, prosecutorial misconduct, the victim's perjured testimony, judicial misconduct, and ineffective assistance of trial counsel. This claim fails because Woolsey is unable to establish that there is a reasonable probability that had counsel raised these issues, Woolsey would have prevailed on appeal. See Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir.1989).
AFFIRMED.