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Cooks v. Spalding

United States Court of Appeals, Ninth Circuit
Nov 2, 1981
660 F.2d 738 (9th Cir. 1981)

Summary

holding that petitioner's claim of prejudice amounted to “mere speculation”

Summary of this case from Hernandez v. Martel

Opinion

No. 81-3192.

Submitted October 8, 1981.

Decided November 2, 1981.

Irwin H. Schwartz, Seattle, Wash., for plaintiff-appellant.

Nate D. Mannakee, Asst. Atty. Gen., Olympia, Wash., for defendants-appellees.

Appeal from the United States District Court for the Western District of Washington.

Before BROWNING and WRIGHT, Circuit Judges, and WEIGEL, District Judge.

Honorable Stanley A. Weigel, District Judge, United States District Court for the Northern District of California, sitting by designation.


Cooks appeals from denial of a petition for habeas corpus. He alleges denial of due process and effective assistance of counsel because his attorney waived his state right to a 12-person jury.

Cooks was present when his counsel requested a 6-person jury and voiced no objection until after trial, a guilty verdict by the jury, and his incarceration. The state courts rejected his claim that the waiver was flawed.

He claims the trial court denied him due process when it deprived him of his state-created right to a knowing and voluntary election of a jury of less than 12 persons. See generally State v. Allman, 19 Wn. App. 169, 173, 573 P.2d 1329, 1332 (1977); Wash.Crim.R. 6.1(b)(1).

Violations of state law, without more, do not deprive a defendant of due process. La Brasca v. Misterly, 423 F.2d 708, 709 (9th Cir.), cert. denied, 400 U.S. 838, 91 S.Ct. 77, 27 L.Ed.2d 72 (1970); Quigg v. Crist, 466 F. Supp. 544, 549 (D.Mont. 1978), aff'd, 616 F.2d 1107 (9th Cir.), cert. denied, 449 U.S. 922, 101 S.Ct. 323, 66 L.Ed.2d 150 (1980). See generally Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970) (federal constitution does not guarantee 12-person juries in state criminal trials). Habeas corpus relief for an asserted violation of due process is available only when the state court's action is arbitrary or fundamentally unfair. United States ex rel. Burnett v. Illinois, 619 F.2d 668, 670 (7th Cir.), cert. denied, 449 U.S. 880, 101 S.Ct. 229, 66 L.Ed.2d 104 (1980); see Debra P. v. Turlington, 644 F.2d 397, 404 (5th Cir. 1981).

Cooks' claim is indistinguishable from that rejected by the Seventh Circuit in Burnett. We agree with the Seventh Circuit that an attorney's waiver of a 12-person jury, with the defendant's silent presence, does not constitute an arbitrary or fundamentally unfair trial. The procedure followed by the state court did not deprive Cooks of due process.

To show he was denied effective assistance of counsel, Cooks must establish that he failed to receive "reasonably effective and competent defense representation," Cooper v. Fitzharris, 586 F.2d 1325, 1329 (9th Cir. 1978) (en banc), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793 (1979), and that he suffered resulting prejudice. Id. at 1331.

Since a smaller jury presents both potential advantages and disadvantages for a defendant, see Ballew v. Georgia, 435 U.S. 223, 229-39, 98 S.Ct. 1029, 1033-38, 55 L.Ed.2d 234 (1978), the jury-size decision by Cooks' attorney was tactical. As such, it fails to support a charge of ineffective assistance of counsel. Gustave v. United States, 627 F.2d 901, 904 (9th Cir. 1980).

His claim of prejudice amounts to mere speculation.

AFFIRMED.


Summaries of

Cooks v. Spalding

United States Court of Appeals, Ninth Circuit
Nov 2, 1981
660 F.2d 738 (9th Cir. 1981)

holding that petitioner's claim of prejudice amounted to “mere speculation”

Summary of this case from Hernandez v. Martel

holding that mere speculation insufficient to demonstrate prejudice

Summary of this case from McConico v. Hartley

denying relief because petitioner's claim of prejudice was speculative

Summary of this case from Hernandez v. Martel
Case details for

Cooks v. Spalding

Case Details

Full title:BOBBY JOE COOKS, PLAINTIFF-APPELLANT, v. JAMES C. SPALDING, WARDEN OF THE…

Court:United States Court of Appeals, Ninth Circuit

Date published: Nov 2, 1981

Citations

660 F.2d 738 (9th Cir. 1981)

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