Williams v. Garcia

MEMORANDUM^***

1. The state trial judge did not violate Williams’ Sixth Amendment right to present a defense, or his Fourteenth Amendment due process right to a fair and impartial trial, when the trial judge intervened in the testimony of an exculpatory witness to advise the witness of her privilege against self-incrimination. Trial judges have discretion to warn a witness about the possibility of self-incrimination. United States v. Santiago-Becerril, 130 F.3d 11, 26 (1st Cir.1997); United States v. Arthur, 949 F.2d 211, 215 (6th Cir.1991); United States v. Silverstein, 732 F.2d 1338, 1344 (7th Cir.1984). A trial judge abuses his discretion when the judge actively encourages a witness not to testify or badgers a witness into remaining silent. Arthur 949 F.2d at 215-216. The trial judge’s action here was not an abuse of discretion.

2. None of the issues raised by Williams establishes that his attorney’s representation violated the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Specifically, we find that Williams failed to show counsel was constitutionally ineffective for failing to: (1) have the off-the-record conference with the witness’s attorney placed on the record; (2) have the court issue a ruling on the validity of the privilege; and (3) object to that ruling. Even if counsel’s performance did fall below Strickland’s objective standard of reasonableness, Williams presents no evidence, aside from his eonclusory allegation of witness intimidation, to show that he was prejudiced. For this reason, we also deny Williams’ request for an evidentiary hearing. See Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963) (establishing that even under more relaxed pre-AEDPA standards, “the district judge is under no obligation to grant a hearing upon a frivolouse or incredible allegation of newly discovered evidence”), overruled on other grounds by Keeney v. TamayoReyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992).

3. Although they were arguably unexhausted, we deny all of Williams’ claims on the merits. 28 U.S.C. § 2254(b)(2). None of the state court rulings is contrary to, or an unreasonable application of, clearly established federal law as determined by the United States Supreme Court. 28 U.S.C. § 2254(d)(1).

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 9 th Circuit Rule 36-3.