923 F.2d 861
Unpublished Disposition
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
David Bernard BRADFORD, Petitioner-Appellant,
v.
James ROWLAND, John Van De Kamp, Respondents-Appellees.
No. 89-55911.
United States Court of Appeals, Ninth Circuit.
Submitted Jan. 23, 1991.*
Decided Jan. 25, 1991.
Before ALARCON, CYNTHIA HOLCOMB HALL and RYMER, Circuit Judges.
MEMORANDUM**
David Bernard Bradford, a California state prisoner, appeals pro se the district court's dismissal of his 28 U.S.C. Sec. 2254 habeas petition. Bradford contends that (1) he received ineffective assistance of counsel, and (2) the district court erred in dismissing his petition without reviewing the state court record or conducting an evidentiary hearing. We review de novo, Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir.1989), and affirm.
In 1987, a jury convicted Bradford of forcible rape, forcible oral copulation, and sexual penetration with a foreign object. Police reports received by defense counsel stated that the victim had prepared five pages of handwritten notes describing her contact with Bradford leading up to the rape. Defense counsel did not seek discovery of these notes nor receive copies of them. The prosecution did not use the notes in its case-in-chief. In 1988, Bradford's state appellate counsel requested copies of the notes, but neither the investigative officer nor the prosecutor could locate them in the file.
Bradford's contention that he received ineffective assistance of counsel at trial is meritless.
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). Deficient performance is demonstrated when the "counsel made errors so serious that the counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. 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. To state an ineffective assistance of counsel claim, the defendant must satisfy both the deficiency and the prejudice components of this standard. Id.
Here, Bradford's ineffective assistance of counsel claim fails because he has not demonstrated that his attorney's failure to obtain the notes prejudiced his defense. Bradford concedes that the notes described only the events preceding the charged offenses, but argues that they would have helped his attorney to impeach the victim's trial testimony. Nevertheless, the victim's statements to the police, her testimony at the preliminary hearing, and her trial testimony were all substantially similar. Bradford's trial attorney had an opportunity to cross-examine the victim and to attempt to point out any inconsistencies in her testimony. Therefore, the district court did not err in finding that Bradford's defense was not prejudiced because it was not reasonably probable that the outcome of the trial would have been different if counsel had obtained the notes. See id.1 Accordingly, the district court correctly determined that Bradford had not stated a claim of ineffective assistance of counsel.
Bradford's contention that the district court erred by not holding an evidentiary hearing to determine whether the victim's notes were destroyed also fails. In considering the merits of a habeas petition, the district court must either independently review the state court record to determine the sufficiency of the state court findings, or hold an evidentiary hearing and make its own findings. Richmond v. Ricketts, 774 F.2d 957, 961 (9th Cir.1985). Here, the district court reviewed the state court record, and adopted the state court finding that the record merely indicated that the victim's notes were lost, not destroyed or secreted by the prosecution.2 Bradford does not point to any evidence in the record that suggests that this finding is clearly erroneous. See Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir.1986) (district court's findings of fact are reviewed under clearly erroneous standard), cert. denied, 484 U.S. 870 (1987). Because the district court independently reviewed the state court record, an evidentiary hearing was not necessary. See Richmond, 774 F.2d at 961.
AFFIRMED.
The panel unanimously finds this case suitable for disposition without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4. Accordingly, Bradford's requests for a hearing and for oral argument are denied
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
In his opening brief, Bradford also argues that the district court erred by failing to determine whether the notes were material to his defense. This argument is not supported by the record because the magistrate's report, adopted by the district court, specifically found that it was unlikely that the notes would differ materially from the victim's statements to the police or from her testimony at the preliminary hearing and trial. The magistrate also found that the lack of the notes did not prejudice Bradford's defense. These findings indicate that the district court implicitly found that the notes were not material
Bradford's contention that the district court did not have the state court record is contradicted by the docket sheet, which indicates that the state court record was lodged with the district court