Opinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a); 9th Cir. R. 34-4. Accordingly, to the extent McClure seeks oral argument, his request is denied.
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 (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)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 District of Oregon John Jelderks, Magistrate Judge, Presiding.
Before O'SCANNLAIN, RYMER, and HAWKINS, Circuit Judges.
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.
Philip Wade McClure, an Oregon state prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2254 petition challenging his 1983 conviction for rape, sodomy, kidnapping, and robbery. We review de novo a district court's decision on a section 2254 petition. See Duckett v. Godinez, 67 F.3d 734, 739 (9th Cir.1995), cert. denied, 517 U.S. 1158, 116 S.Ct. 1549, 134 L.Ed.2d 651 (1996). We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
McClure contends that there was insufficient evidence to support his conviction for kidnapping and robbery. We disagree.
Viewing the evidence in the light most favorable to the prosecution, see Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), there was more than sufficient evidence to convict McClure of robbery under state law. Contrary to McClure's assertions, the jury could have reasonably found that the umbrella he used during the crimes was a dangerous weapon within the meaning of Oregon's robbery statute and that he used it to effectuate the robbery. See Id. at 319; State v. Bell, 771 P.2d 30, 306 (Or.App.Ct.1989) (holding jury could reasonably find that cowboy boots during commission of robbery constituted "dangerous weapon").
With regard to his kidnapping conviction, McClure contends that the trial court should have dismissed the charge under state law because the kidnapping was merely "incidental" to the rape. The state appellate court rejected this claim and we are bound by its interpretation. See Martin v. Ohio, 480 U.S. 228, 232, 107 S.Ct. 1098, 94 L.Ed.2d 267 (1987).
McClure does not contend that the state court interpretation violates the due process clause.
McClure also contends trial counsel was ineffective for failing to move for the dismissal of these charges. In light of our disposition of the underlying merits of these claims, he cannot show he was prejudiced by counsel's failure to do so. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
McClure contends that appellate counsel was ineffective for failing to appeal the trial court's denial of his motion to suppress identification evidence and his motion for change of venue. Both claims fail for lack of prejudice.
With regard to the motion for change of venue, defense counsel at trial argued that the pretrial publicity was so prejudicial and inflammatory that McClure would be unable to receive a fair trial. The trial court rejected the contention and the record supports that conclusion under both state and federal law. See State v. Little, 249 Or. 297, 431 P.2d 810, 816-817 (Or Ct.App.1967); Gallego v. McDaniel, 124 F.3d 1065, 1071 (9th Cir.1997), cert. denied, 524 U.S. 922, 118 S.Ct. 2311, 141 L.Ed.2d 169 (1998). Accordingly, appellate counsel was not ineffective for failing to appeal the denial of the motion for change of venue. See Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir.1989) (noting that "weeding out of weaker issues is widely recognized as one of the hallmarks of effective appellate advocacy").
Nor was appellate counsel ineffective for failing to appeal the denial of McClure's motion to suppress identification evidence. The trial record does not support the conclusion that there was "a very substantial likelihood of irreparable misidentification." See Manson v. Brathwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).
McClure also raises the following claims on appeal: (1) the district court erred by denying his motion for change of venue; (2) the prosecutor committed prejudicial misconduct by making disparaging comments about McClure to the press and that trial and appellate counsel were ineffective for raising this issue; (3) the trial court imposed an unauthorized sentence when it ordered the counts on the current conviction to run consecutive to his term for his parole violation and trial and appellate counsel were ineffective for raising this issue; (4) trial and appellate counsel were ineffective for failing to obtain the entire trial transcript for review. We agree with the district court that McClure procedurally defaulted on these claims by failing to raise them in his direct appeal or his first petition for post-conviction relief. See O.R.S. § 138.550(3) (claims not raised in first petition for post-conviction relief are barred from review); Pope v. Zenon, 69 F.3d 1018, 1026 (1994); Kellotat v. Cupp, 719 F.2d 1027, 1031 (9th Cir.1983).
McClure also claims that the district court erred by denying his motion to stay the proceedings so that he could add a newly discovered claim that needed to be exhausted. Given that McClure filed this motion over a month after he had defaulted on his third and final extension of time to file his traverse and after the court held its hearing on the state's motion to dismiss, the district court did not err in denying his motion to stay the proceedings. See generally, Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir.1994). To the extent McClure contends counsel was ineffective during his habeas corpus proceedings, we note that there is no constitutional right to effective assistance of counsel in such proceedings. See Bonin v. Calderon, 77 F.3d 1155, 1159 (9th Cir.1996).
Finally, McClure claims that the post-conviction court erred by refusing to order the transcription of the voir dire proceedings. To the extent he did raise this as a federal constitutional issue to the state appellate court, it was properly rejected. McClure failed to show that the transcript was relevant to the claims raised in his post-conviction petition.
Accordingly, the district court's order denying McClure habeas relief is AFFIRMED.