Bode v. Roe

104 F. App'x 130

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 30, 2004
• Docket: No. 03-56167
• Status: Published

Opinion

MEMORANDUM

*

The state court’s determination that Bode failed to establish ineffective assistance of counsel was not an unreasonable application of Supreme Court law. In closing argument, Bode’s attorney conceded guilt as to the charges on which the evidence was overwhelming and for which there was no defense, while vigorously contesting various other charges and sentencing enhancements. This strategy reflected a reasonable tactical choice. Cf. Anderson v. Calderon, 232 F.3d 1053, 1087-90 (9th Cir.2000), overruled on other grounds, Osband v. Woodford, 290 F.3d 1036, 1043 (9th Cir.2002).

Bode also claims that the evidence was insufficient to support his conviction for resisting an executive officer, under California Penal Code § 69. The second prong of § 69, which is the only portion applicable here, proscribes resisting an executive officer by use of “force” or “violence.” These terms cover Bode’s conduct, including his announcing his possession of a shotgun and his chambering a round in response to the police request that he exit his apartment. The California Court of Appeal’s holding that the evidence sufficiently established that Bode had violated § 69 was therefore neither contrary to nor an unreasonable application of Supreme Court law.

AFFIRMED.

Bode’s motion to broaden the scope of the certificate of appealability is 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 Ninth Circuit Rule 36-3.