Gerkin v. Butler

Ninth Circuit

Gerkin v. Butler

125 F. App'x 772

CourtCourt of Appeals for the Ninth Circuit

DecidedFebruary 10, 2005

DocketNo. 04-55135

StatusPublished

This text of 125 F. App'x 772 (Gerkin v. Butler) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gerkin v. Butler, 125 F. App'x 772 (9th Cir. 2005).

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Opinion

MEMORANDUM

**

California state prisoner Robert E. Ger-kin appeals pro se the district court’s order denying his 28 U.S.C. § 2254 petition, challenging his conviction for inflicting corporal injury on a cohabitant. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

Gerkin contends that there was improper communication with members of the jury, and that he was thereby deprived of a fair trial. The state trial court considered the allegations and concluded, assuming that they were true, that Gerkin failed to demonstrate prejudice. Upon review of the record, we conclude that the state court’s resolution of this case was neither contrary to, nor an unreasonable application of, clearly established federal law. See Rushen v. Spain, 464 U.S. 114, 118-19, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983); Mancuso v. Olivarez, 292 F.3d 939, 949 (9th Cir.2002). Accordingly, the district court properly denied this claim.

Gerkin further contends that he received ineffective assistance of trial counsel because his attorney: (1) failed to investigate and correct the alleged improper communication with the jury; and (2) failed to investigate and exclude the government’s expert on Battered Women’s Syndrome. Even assuming that counsel’s performance was deficient, Gerkin ' has failed to show “that there is a reasonable probability that, but for counsel’s unpro[774]*774fessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The district court therefore properly denied this claim.

Gerkin’s remaining arguments are outside the scope of the Certifícate of Appeal-ability, and, to the extent that the arguments can be construed as a motion to broaden, we deny the motion. See '28 U.S.C. § 2253(c); 9th Cir. R. 22-l(e).

AFFIRMED.

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.

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MEMORANDUM

**

California state prisoner Robert E. Ger-kin appeals pro se the district court’s order denying his 28 U.S.C. § 2254 petition, challenging his conviction for inflicting corporal injury on a cohabitant. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

Gerkin contends that there was improper communication with members of the jury, and that he was thereby deprived of a fair trial. The state trial court considered the allegations and concluded, assuming that they were true, that Gerkin failed to demonstrate prejudice. Upon review of the record, we conclude that the state court’s resolution of this case was neither contrary to, nor an unreasonable application of, clearly established federal law. See Rushen v. Spain, 464 U.S. 114, 118-19, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983); Mancuso v. Olivarez, 292 F.3d 939, 949 (9th Cir.2002). Accordingly, the district court properly denied this claim.

Gerkin further contends that he received ineffective assistance of trial counsel because his attorney: (1) failed to investigate and correct the alleged improper communication with the jury; and (2) failed to investigate and exclude the government’s expert on Battered Women’s Syndrome. Even assuming that counsel’s performance was deficient, Gerkin ' has failed to show “that there is a reasonable probability that, but for counsel’s unpro[774]*774fessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The district court therefore properly denied this claim.

Gerkin’s remaining arguments are outside the scope of the Certifícate of Appeal-ability, and, to the extent that the arguments can be construed as a motion to broaden, we deny the motion. See '28 U.S.C. § 2253(c); 9th Cir. R. 22-l(e).

AFFIRMED.

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.

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125 F. App'x 772, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gerkin-v-butler-ca9-2005.

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