Virgil v. Poole

77 F. App'x 996

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 20, 2003
• Docket: No. 02-55717; D.C. No. CV-99-00469-JTM/JAH
• Status: Published

Opinions

MEMORANDUM

*

Glenda Jo Virgil’s claim that she was a victim of ineffective assistance of counsel fails, because Virgil has not demonstrated that her counsel’s performance was constitutionally deficient.

The provisions of the Anti-Terrorism and Effective Death Penalty Act (“AED-PA”) apply because Virgil filed her federal habeas petition after the statute’s effective date. See Slack v. McDaniel, 529 U.S. 473, 481, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). To warrant habeas relief, Virgil must show that the state court’s denials of her state habeas petitions were “contrary to, or involved an unreasonable application of, clearly established Federal law.” Lounsbury v. Thompson, 340 F.3d 998, 1001 (9th Cir.2003) (citation omitted).

Investigation conducted by Virgil’s trial counsel was reasonable under Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1986). He reviewed the documents and files prepared and compiled by Virgil’s prior counsel; consulted with and retained the same investigator used by prior counsel; consulted a mental health professional; interviewed jurors from the aborted trial; and listened to audiotapes of prospective witnesses, including the taped sessions between Virgil and the prior defense expert. Cf. Williams v. Taylor, 529 U.S. 362, 395-96, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (finding ineffectiveness where defense counsel failed to conduct a thorough investigation). Defense counsel was not required to re-interview each potential witness to render effective assistance to Virgil.

By the same token, counsel was not ineffective when he chose to present one defense rather than another at trial. See Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir.1998); Hensley v. Crist, 67 F.3d 181, 185 (9th Cir.1995).

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.