Grass v. Ignacio

MEMORANDUM ^*

Barbara V. Grass appeals the district court’s denial of his 28 U.S.C. § 2254 petition challenging his 1990 jury conviction for four counts of sexual assault. We affirm.

Grass contends that his counsel rendered ineffective assistance by failing to object to the trial court’s requirement that Grass wear a surgical mask during trial to avoid exposing the courtroom to hepatitis. Grass cannot show that counsel’s performance was deficient for he has not articulated any reason he provided to counsel at the time of trial which verifies that counsel knew Grass did not want to wear the mask. Nor has he demonstrated prejudice. See Strickland v. Washington, 466 U.S. 668, 687, 693-94, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Grass has not established that counsel’s formal objection to the mask would have been successful, see Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986), or that there is a reasonable probability that the result of the proceeding would have been different, see Strickland, 466 U.S. at 694, 697, 104 S.Ct. 2052; Dows v. Wood, 211 F.3d 480, 485-86 (9th Cir. 2000).

Grass also challenges defense counsel’s failure to present expert testimony to counteract the prosecution’s expert witness. Counsel’s performance was not deficient because he made a tactical decision to thoroughly and effectively cross-examine the prosecution’s expert in lieu of calling his own expert. See Strickland, 466 U.S. at 688-89, 694, 104 S.Ct. 2052; Dows, 211 F.3d at 486-87.

To the extent Grass seeks an evidentiary hearing, he has offered no argument to this court or the district court to demonstrate that he meets the stringent requirements of 28 U.S.C. § 2254(e)(2)(A) and (B). See Williams v. Taylor, 529 U.S. 420, 429-437, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000).

AFFIRMED.

* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36.3.