Opinion · Court of Appeals for the Ninth Circuit
Cooks v. Spalding
Cooks v. Spalding, 660 F.2d 738 (9th Cir. 1981)
- Type
- Opinion
- Court
- Court of Appeals for the Ninth Circuit
- Jurisdiction
- Federal
- Date
- 1981-11-02
- Topic
- general
How later courts describe this case
- a claim that 4 “amounts to mere speculation” does not warrant habeas corpus relief
Citator
UpLaw has not yet analyzed Cooks v. Spalding. The absence of a flag is not a finding that it is good law.
- Cited by
- 25 opinions
COOKS v. SPALDING,660 F.2d 738(9th Cir. 1981)
BOBBY JOE COOKS, PLAINTIFF-APPELLANT, v. JAMES C. SPALDING, WARDEN OF THE
WASHINGTON STATE PENITENTIARY AT WALLA WALLA; KENNETH EIKENBERRY, ATTORNEY
GENERAL FOR THE STATE OF WASHINGTON, DEFENDANTS-APPELLEES.
No. 81-3192.
United States Court of Appeals, Ninth Circuit.
Submitted October 8, 1981.
Decided November 2, 1981.
Page 739
Nate D. Mannakee, Asst. Atty. Gen., Olympia, Wash., for defendants-appellees.
Before BROWNING and WRIGHT, Circuit Judges, and WEIGEL,fn*District Judge.
[2] 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.
[3] 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.Seegenerally State v. Allman,19 Wn. App. 169, 173,573 P.2d 1329, 1332 (1977); Wash.Crim.R. 6.1(b)(1).
[4] 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).Seegenerally 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).
[5] Cooks' claim is indistinguishable from that rejected by the Seventh Circuit inBurnett.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.Page 740
[6] 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.
[7] 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).
[8] His claim of prejudice amounts to mere speculation.
[9] AFFIRMED.
- Honorable Stanley A. Weigel, District Judge, United States District Court for the Northern District of California, sitting by designation. ↩