Markay v. Lockyer

Ninth Circuit

Markay v. Lockyer

58 F. App'x 751

CourtCourt of Appeals for the Ninth Circuit

DecidedMarch 18, 2003

DocketNo. 02-15931; D.C. No. CV-99-01479-GEB/GGH

StatusPublished

This text of 58 F. App'x 751 (Markay v. Lockyer) 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.

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Markay v. Lockyer, 58 F. App'x 751 (9th Cir. 2003).

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Opinion

MEMORANDUM

**

California state prisoner Jerome Markay appeals pro se the district court’s denial of his 28 U.S.C. § 2254 petition for writ of habeas corpus, challenging his conviction for two counts of battery on a non-prisoner. We have jurisdiction pursuant to 28 U.S.C. § 2253. We affirm.

Markay first contends that his trial counsel was ineffective for failing to prepare a defense, to interview witnesses, and to object to a witness’ testimony. Because this contention is belied by the record, Markay fails to demonstrate counsel’s performance was outside the wide range of reasonable assistance. See Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (deciding that a petitioner demonstrates his counsel was ineffective by establishing that his counsel’s performance was deficient, and that the deficient performance prejudiced his defense).

To the extent Markay alleges that his Sixth Amendment right to self-representation was hindered by inadequate library access, this contention fails. Markay fails to demonstrate that any alleged denial of adequate library access by the trial court prejudiced his right to self-representation, since he had his own investigator, access to the law library, permission to interview [752]*752witnesses, and was subsequently appointed counsel to represent him. Cf Milton v. Morris, 767 F.2d 1443, 1446 (9th Cir.1985) (recognizing that “an incarcerated defendant may not meaningfully exercise his right to represent himself without access to law books, witnesses, or other tools to prepare a defense”).

Therefore, the district court properly denied federal habeas relief on Markay’s claims. See 28 U.S.C. § 2254(d); Woodford v. Visciotti 537 U.S. 19, 123 S.Ct. 357, 361, 154 L.Ed.2d 279 (2002) (per curiam) (stating that the federal habeas scheme “authorizes federal-court intervention only when a state-court decision is objectively unreasonable”), reh’g denied, — U.S. -, 123 S.Ct. 957, 154 L.Ed.2d 855 (2003).¹

AFFIRMED.²

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 Jerome Markay appeals pro se the district court’s denial of his 28 U.S.C. § 2254 petition for writ of habeas corpus, challenging his conviction for two counts of battery on a non-prisoner. We have jurisdiction pursuant to 28 U.S.C. § 2253. We affirm.

Markay first contends that his trial counsel was ineffective for failing to prepare a defense, to interview witnesses, and to object to a witness’ testimony. Because this contention is belied by the record, Markay fails to demonstrate counsel’s performance was outside the wide range of reasonable assistance. See Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (deciding that a petitioner demonstrates his counsel was ineffective by establishing that his counsel’s performance was deficient, and that the deficient performance prejudiced his defense).

To the extent Markay alleges that his Sixth Amendment right to self-representation was hindered by inadequate library access, this contention fails. Markay fails to demonstrate that any alleged denial of adequate library access by the trial court prejudiced his right to self-representation, since he had his own investigator, access to the law library, permission to interview [752]*752witnesses, and was subsequently appointed counsel to represent him. Cf Milton v. Morris, 767 F.2d 1443, 1446 (9th Cir.1985) (recognizing that “an incarcerated defendant may not meaningfully exercise his right to represent himself without access to law books, witnesses, or other tools to prepare a defense”).

Therefore, the district court properly denied federal habeas relief on Markay’s claims. See 28 U.S.C. § 2254(d); Woodford v. Visciotti 537 U.S. 19, 123 S.Ct. 357, 361, 154 L.Ed.2d 279 (2002) (per curiam) (stating that the federal habeas scheme “authorizes federal-court intervention only when a state-court decision is objectively unreasonable”), reh’g denied, — U.S. -, 123 S.Ct. 957, 154 L.Ed.2d 855 (2003).¹

AFFIRMED.²

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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