Simms v. Ayers

52 F. App'x 954

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 11, 2002
• Docket: No. 02-16192; D.C. No. CV-00-00504-CW
• Status: Published

Opinion

MEMORANDUM

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California state prisoner James Simms, serving a 27-year sentence for first degree murder, appeals pro se the denial of his 28 U.S.C. § 2254 petition. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo the denial of a 28 U.S.C. § 2254 petition, Mendez v. Small, 298 F.3d 1154, 1157-58 (9th Cir.2002), and affirm.

Simms contends that his trial counsel provided ineffective assistance by failing to investigate “diminished actuality” and heat of passion defenses. This contention is unpersuasive because counsel made a reasonable tactical decision based on her client’s adamant account of the facts. See Strickland v. Washington, 466 U.S. 668, 688-89, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Bean v. Calderon, 163 F.3d 1073, 1082 (9th Cir.1998) (holding that there is no ineffective assistance if an attorney makes a reasonable strategic choice to pursue alibi defense and to abandon conflicting diminished capacity defense based on client’s own representations).¹

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.

1 . All pending motions are denied.