                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                               DEC 29 2010

                                                                            MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS

LEE ROBBINS,                                      No. 07-55458

              Petitioner - Appellant,             D.C. No. CV-94-01157-GHK

  v.
                                                  MEMORANDUM*
GEORGE SMITH,

              Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     George H. King, District Judge, Presiding

                      Argued and Submitted December 7, 2010
                               Pasadena, California

Before: PREGERSON, CLIFTON, and BEA, Circuit Judges.

       Lee Robbins appeals the district court’s denial of his petition for writ of

habeas corpus pursuant to 28 U.S.C. § 2254. We affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
I.    Right to Counsel

      Robbins raises three appointment of counsel claims purportedly implicating

his Sixth Amendment rights. Each lacks merit.

      First, Robbins is not entitled to substitute his court-appointed counsel with

new counsel simply because he disagrees with his counsel or is unsatisfied with his

counsel’s performance. A criminal defendant has a constitutional right to

appointed counsel but not to any particular attorney. Jackson v. Ylst, 921 F.2d 882,

888 (9th Cir. 1990). Upon review of the multiple Marsden hearings held by the

trial court, we conclude that the court did not abuse its discretion in denying

Robbins’s request. Nothing in the record indicates that the disagreements between

Robbins and his counsel prevented counsel from rendering effective assistance.

      Second, after Robbins’s voluntary and intelligent waiver of counsel pursuant

to Faretta v. California, 422 U.S. 806, 835 (1975), Robbins did not expressly

request reappointment of counsel. Instead, Robbins made requests for advisory

counsel and to retain his pro se status and to act as co-counsel. Only in a single

paragraph in the May 2, 1990 motion did Robbins mention reappointment of

counsel, and this request was clearly qualified by his insistence that he remain co-

counsel. This was not a request to withdraw his waiver and be represented by




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counsel in subsequent proceedings, and thus Robbins’s waiver carried forward.

See United States v. Springer, 51 F.3d 861, 864-65 (9th Cir. 1995).

      Third, there is no Sixth Amendment right to advisory counsel. United States

v. Moreland, 622 F.3d 1147, 1155 (9th Cir. 2010).

II.   Brady Material

      Robbins did not establish a Brady violation because the exculpatory

evidence allegedly withheld from Robbins was not material. See Brady v.

Maryland, 373 U.S. 83 (1963). Evidence is material “if there is a reasonable

probability that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different.” Silva v. Brown, 416 F.3d 980, 985 (9th

Cir. 2005) (citations omitted). In Robbins’s case, there was no such reasonable

probability.

      With respect to the victim’s rap sheet, any information to be gained would

have been cumulative. Merely cumulative evidence does not satisfy the Brady

materiality prong. See Barker v. Fleming, 423 F.3d 1085, 1096-97 (9th Cir. 2005).

      With respect to the ballistics report, the record does not establish that such a

report existed. Like the district court, we conclude the government did not violate

Brady by withholding a report that did not exist. We are unpersuaded by




                                          3
counsel’s inference that a report did exist. Such an inference is not supported by

the record.

       Finally, as to the victim’s death certificate, the coroner’s investigator’s

report, the GSR Data Sheet, and the Case Reported sheet, the documents were not

material. Even though the four documents tended to refute the government’s

theory as to when the shooting occurred, the documents were contradicted by

substantial ear and eye witness testimony, which informed the jury that the

shooting had occurred sometime prior to 8:30 pm. Because the overwhelming

evidence presented at trial was contrary to the information in the four documents,

the government’s failure to disclose the documents was not prejudicial and did not

violate Brady. See United States v. Zuno-Arce, 44 F.3d 1420, 1428 (9th Cir. 1995).

III.   Appellate Review and Assistance of Appellate Counsel

       Robbins’s appellate counsel did not provide ineffective assistance of counsel

per se by filing a no-merit brief pursuant to California procedure in People v.

Wende, 25 Cal. 3d 436 (1979). Smith v. Robbins, 528 U.S. 259, 276, 279-84

(2000). The proper standard under which to evaluate Robbins’s Wende claims is

that enunciated in Strickland v. Washington, 466 U.S. 668 (1984). See Smith, 528

U.S. at 285. Robbins is required to “show that his counsel was objectively

unreasonable in failing to find arguable issues to appeal. . . . If Robbins succeeds in


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such a showing, he then has the burden of demonstrating prejudice.” Id. (citation

omitted).

      Appellate counsel did not render ineffective assistance for failing to raise

meritless legal arguments. See Shah v. United States, 878 F.2d 1156, 1162 (9th

Cir. 1989); Baumann v. United States, 692 F.2d 565, 572 (9th Cir. 1982). First,

Robbins did not request reappointment of counsel, as discussed above. Second, the

trial court properly exercised its discretion in considering and denying Robbins’s

request for advisory counsel. Contrary to Robbins’s belief, People v. Bigelow, 37

Cal. 3d 731, 743-44 (1984), does not lay out a strict rubric of factors that a court

must consider. Under Bigelow, a defendant is entitled “only to a considered

exercise of judicial discretion,” id. at 745, which Robbins received when the trial

court considered his request during the August 9, 1990 hearing. Third, the four

undisclosed documents were not material under Brady.

      Moreover, Robbins is not entitled to a presumption of prejudice simply

because counsel failed to provide the entire record on appeal as required by Wende.

This scenario does not fall into those categories requiring a presumption of

prejudice under Strickland. See Smith, 528 U.S. at 285-87. We also decline

Robbins’s invitation to extend Penson v. Ohio, 488 U.S. 75, 86-88 (1988), and do

not find that Robbins was constructively denied counsel such that a presumption of


                                           5
prejudice is warranted. Robbins has not demonstrated that counsel’s failure to

provide the entire record on appeal resulted in actual prejudice, as required under

Strickland.

      AFFIRMED.




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                                                                               FILED
Robbins v. Smith, No. 07-55458                                                 DEC 29 2010

                                                                           MOLLY C. DWYER, CLERK
PREGERSON, Circuit Judge, dissenting:                                        U.S. COURT OF APPEALS



      I agree with the majority that Robbins’ three appointment of counsel claims

implicating his Sixth Amendment rights lack merit. I disagree, however, with the

majority’s conclusion that the exculpatory evidence allegedly withheld from

Robbins was not material, and I would reverse the district court on this basis.

Therefore, I dissent.

      Robbins claims that the prosecution violated his due process rights under

Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose (1) the victim’s rap

sheet, (2) the ballistics report, and (3) documents that suggest that the victim was

killed at 10:00 pm, instead of 6:00 to 6:30 pm as the prosecution argued at trial.

These documents include the victim’s death certificate, the coroner’s investigator’s

report, the GSR Data Sheet, and the Case Reported sheet. Instead of holding an

evidentiary hearing to determine whether these documents were in fact turned over

to Robbins, the district court dodged the issue by concluding that the evidence

contained in these documents was not material. I disagree and would remand to

the district court to determine whether the prosecution turned over these documents

to Robbins.

      Evidence is material under Brady “if there is a reasonable probability that,

had the evidence been disclosed to the defense, the result would have been
different.” Silva v. Brown, 416 F.3d 980, 985 (9th Cir. 2005) (citations omitted).

The proper inquiry is whether the evidence the prosecution failed to disclose

undermines the confidence in the verdict. Id. If the prosecution did in fact

withhold these documents as Robbins asserts, I believe the guilty verdict returned

on the murder charge is not worthy of our confidence.

      A. The Victim’s Rap Sheet

      In his pre-trial discovery motion, Robbins explicitly requested that the

prosecution produce the victim’s rap sheet, which would have revealed that the

victim was arrested a few months before his death for beating his wife. That rap

sheet suggests that the victim was a violent person and that someone else might

have had a motive to kill him. Regardless of whether the trial court would have

admitted the victim’s rap sheet into evidence, its disclosure would have influenced

Robbins’ defense strategy. United States v. Bagley, 473 U.S. 667, 682-83 (1985).

Therefore, the victim’s rap sheet is material for the purposes of Brady because

there is a “reasonable probability that the result” of Robbins’ trial would have been

different had the prosecution disclosed this evidence of Robbins’ violent

propensities. Silva, 416 F.3d at 985.

      B. The Ballistics Report

      The majority affirms the district court’s finding that “the government did not

                                          2
violate Brady by withholding a [ballistics] report that does not exist.” Maj. op. at

3. I disagree. First, it defies common sense that the police did not produce a

ballistics report in their investigation of a murder where the murder weapon was a

gun, and expended bullets were found at the scene of the crime and some were

lodged in the body of the victim. Second, Deputy Van Horn, a firearms examiner

in the Los Angeles County Scientific Services Bureau, Firearm Identification

Section, testified solely at trial about his conclusions that the bullets found at the

crime scene were fired from the same gun owned by Robbins’ brother-in-law and

recovered from Robbins’ brother-in-law’s house. A ballistics report must therefore

have existed, and such a report is certainly material in a case where the only

physical evidence possibly linking Robbins to the murder scene was the validity of

the match between the gun found at Robbins’ brother-in-law’s house and the

bullets found at the murder scene.

      While I recognize that there is a factual dispute whether the prosecution did

in fact turn over Deputy Van Horn’s report to Robbins, oddly the district court’s

conclusion here was based on its belief that no ballistics report existed. I would

remand to the district court to determine (1) whether Deputy Van Horn’s report is a

ballistics report, and (2) whether the prosecution in fact provided it to Robbins.




                                           3
      C. The Coroner’s Documents

      The victim’s death certificate, the coroner’s investigator’s report, a GSR

Data Sheet, and a Case Reported sheet all suggest that the shooting occurred at

10:00 pm and not at 6:30 pm, as the prosecution alleged at trial. The prosecution

based its case at least in part on being able to place Robbins near the scene of the

crime at around 6:30 pm when it believed the shooting took place.

      The majority affirms the district court’s conclusion that these documents

were not material “[b]ecause the overwhelming evidence presented at trial was

contrary to the information in the four documents.” Maj. op. at 4. The majority,

however, has applied the wrong standard.

      As we stated in Silva, “[t]he question is not whether the defendant more

likely than not would have received a different verdict with the evidence, but

whether in its absence he received a fair trial, understood as a trial resulting in a

verdict worthy of confidence.” 416 F.3d at 985. The prosecution’s case here was

based on circumstantial evidence placing Robbins at the scene of the crime around

6:00 and 6:30 pm. The only physical evidence possibly linking Robbins to the

crime scene was a gun owned by Robbins’ brother-in-law and recovered from

Robbins’ brother-in-law’s house. There was no evidence presented at trial directly

linking Robbins to this gun. Therefore, these reports from the coroner’s office

                                           4
would have created a “reasonable probability that, had the evidence been disclosed

to the defense, the result would have been different.” Id. If these four documents

were not disclosed to the defendant, a guilty verdict on the murder charge is

certainly not worthy of our confidence.

      D. Conclusion

      The majority’s conclusion that these documents were not material

encourages prosecutors to play fast and loose with exculpatory evidence, believing

they can hide behind the shield of immateriality. In this case, the prosecution will

never have to respond to the allegation that it withheld critical exculpatory

documents. Such a result breeds a disrespect for the law and the constitutional due

process guarantees articulated in Brady.




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