April 27 – May 1, 2009
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U.S. Supreme Court, April 28, 2009 Cone v. Bell, No. 07-1114 In a capital habeas proceeding, the denial of Petitioner’s habeas petition is reversed where the state courts’ rejection of Petitioner’s Brady v. Maryland claim did not rest on a ground that barred federal review, and the lower courts failed to adequately consider whether the allegedly withheld evidence was material to Petitioner’s sentence. .
U.S. Supreme Court, April 29, 2009 Kansas v. Ventris, No. 07-1356 The state supreme court’s reversal of defendant’s burglary conviction is reversed where the state obtained a confession from a confidential informant but defendant’s statement to the informant, concededly elicited in violation of the Sixth Amendment, was admissible to impeach his inconsistent testimony at trial.
U.S. Supreme Court, April 29, 2009 Dean v. US, No. 08-5274 Defendant’s firearm conviction is affirmed where defendant claimed he unintentionally fired his gun during a robbery, but 18 U.S.C. section 924(c)(1)(A)(iii) requires no separate proof of intent, and its 10-year mandatory minimum applies if a gun is discharged in the course of a violent or drug trafficking crime, whether on purpose or by accident.
U.S. 1st Circuit Court of Appeals, April 28, 2009 Lykus v. Corsini, No. 08-2425
Petition for rehearing or rehearing en banc of an application for leave to file a second or successive petition for habeas corpus relief is denied, where the habeas statute that provides that the denial of an authorization to file a second or successive application shall not be the subject of a petition for rehearing also precludes petitions or suggestions for rehearing en banc.
U.S. 1st Circuit Court of Appeals, April 29, 2009 US v. Saccoccia, No. 06-2121
District court grant of motion by the government to forfeit substitute assets belong to defendant that were already in the government’s possession but had not been specifically named in any prior forfeiture order is affirmed where: 1) defendant had no constitutional right to appointed counsel under the Fifth or Sixth Amendment to defend against the government’s attempt to forfeit the substitute assets; 2) the property in question may be forfeited as substitute property under 18 U.S.C. sec. 1963(m) as it was not yet forfeited and there was still an unfulfilled judgment against defendant; and 3) there is no constitutional right in criminal forfeiture proceedings that factual predicates for a substitute asset forfeiture be found by a jury and not by a court.
U.S. 1st Circuit Court of Appeals, April 29, 2009 US v. Azubike, No. 08-1493
Conviction for drug crimes is affirmed where: 1) the evidence against defendant was sufficient to support his conviction; 2) the district court did not err in giving a willful blindness instruction to the jury at retrial as it was supported by sufficient facts; and 3) defendant is not entitled to a new trial as the jury verdict was supported by the weight of the evidence.
U.S. 2nd Circuit Court of Appeals, April 27, 2009 US v. Murillo-Bejarano, No. 09-1576 Petition for mandamus seeking recognition as a crime victim and restitution under the Crime Victims Rights Act is denied where the district court did not abuse its discretion in denying petitioner Rendon Galvis’ motion to enforce her rights as a victim, as she does not qualify as a crime victim under the Act and is not otherwise entitled to restitution since her son’s death was not shown to have been a direct and proximate harm resulting from the defendant’s criminal conduct in the course of the scheme, conspiracy, or pattern.
U.S. 2nd Circuit Court of Appeals, April 28, 2009 Lewis v. Rawson , No. 05-3805 In a prisoner civil rights action, district court order dismissing plaintiff’s suit is affirmed where: 1) the court did not abuse its discretion in denying adjournment and transfer as plaintiff failed to demonstrate that his concerns about detention were objectively reasonable, and should have raised his concerns about the detention before the jury was sworn; 2) the court did not abuse its discretion in dismissing plaintiff’s case after plaintiff refused to testify; and 3) application of the Drake factors supports dismissal.
U.S. 3rd Circuit Court of Appeals, April 29, 2009 Hummel v. Rosemeyer, No. 06-2711 District court denial of plaintiff’s request for a writ of habeas corpus is reversed where: 1) plaintiff received ineffective assistance of counsel for counsel’s failure to deal appropriately with the likelihood that plaintiff was incompetent to stand trial; and 2) there was a reasonable probability that plaintiff was prejudiced by the ineffectiveness.
U.S. 3rd Circuit Court of Appeals, April 29, 2009 US v. Lofink, No. 08-3204 Sentence for wire fraud and money laundering is vacated and remanded where the district court’s denial of defendant’s motion for a departure from the Sentencing Guidelines range went against precedent requiring district courts to decide departure motions on their merits in order to satisfy the requirement of procedural reasonableness.
U.S. 3rd Circuit Court of Appeals, April 30, 2009 US v. Doe , No. 08-3968 Sentence for drug crimes is affirmed where: 1) the district court properly interpreted the policy statement of U.S.S.G. sec. 1B1.10(a)(2) and properly applied 18 U.S.C. sec. 3582(c)(2) in denying defendant’s motion for reduction of sentence; 2) the applicable guideline range in U.S.S.G. sec. 1B1.10(a)(2) refers to the defendant’s mandatory minimum sentence, which was not affected by Amendment 706; and 3) the court properly concluded that it lacked the authority to further reduce the defendants’ sentences as Booker did not apply.
U.S. 4th Circuit Court of Appeals, April 27, 2009 US v. Layton, No. 07-4763 Defendant’s child pornography possession sentence is affirmed, where the District Court properly enhanced Defendant’s sentence based on 1) his incriminating statements to the FBI about the quantity of child pornography he possessed and 2) his use of a peer-to-peer file-sharing program to share the files with others.
U.S. 4th Circuit Court of Appeals, April 27, 2009 US v. Carter, No. 08-4643 Defendant’s firearm possession sentence is vacated, where the District Court failed to state any particularized basis to support its chosen sentence, and thus the Court of Appeals could not uphold the sentence as procedurally reasonable or determine its substantive reasonableness.
U.S. 4th Circuit Court of Appeals, April 29, 2009 US v. Neely, No. 08-4257 In a firearm possession prosecution, the denial of Defendant’s motion to suppress the firearm is reversed where: 1) Defendant did not explicitly consent to the search of his car; and 2) leaving the driver’s side door open and failing to object to a search were not sufficient to implicitly consent to the search.
U.S. 4th Circuit Court of Appeals, April 29, 2009 US v. Massenburg, No. 08-4373 Defendant’s firearm possession sentence is affirmed where: 1) Defendant claimed that the District Court failed to inform him of his potential status as an armed career criminal prior to accepting his guilty plea, but Defendant did not object to this error; and 2) Defendant failed to show a reasonable probability that he would have pled not guilty had he been properly informed.
U.S. 5th Circuit Court of Appeals, April 27, 2009 Day v. Quarterman, No. 07-40699 In a criminal child injury matter, the denial of Petitioner’s habeas petition is affirmed, where the District Court properly rejected Petitioner’s ineffective assistance claim because there was no showing that the medical expert counsel allegedly failed to offer was available to testify at trial.
U.S. 5th Circuit Court of Appeals, April 27, 2009 Richards v. Quarterman, No. 08-10934 In a murder prosecution, the grant of Petitioner’s habeas petition is affirmed, where the District Court did not abuse its discretion in holding an evidentiary hearing on Petitioner’s ineffective assistance allegations or finding ineffective assistance, considering the evidence of counsel’s serious failure to present exculpatory evidence.
U.S. 5th Circuit Court of Appeals, April 29, 2009 Wion v. Quarterman, No. 07-50580 The grant of Petitioner’s habeas petition is reversed where the petition was not filed within one year of the denial of his parole because: 1) Petitioner’s request for special review in the Texas parole system did not toll the federal habeas limitations period; and 2) Petitioner’s mistake of law did not create equitable tolling.
U.S. 5th Circuit Court of Appeals, May 01, 2009 Deville v. Marcantel, No. 07-31049 In a 42 U.S.C. section 1983 action based on excessive force in an arrest, summary judgment for Defendants is affirmed in part and reversed in part where: 1) Defendant-Supervisor had no reason to believe Defendant-Officer misrepresented the circumstances of the arrest; and 2) a reasonable jury could disbelieve Defendant-Officer’s claim that he had probable cause to arrest Plaintiff.
U.S. 5th Circuit Court of Appeals, May 01, 2009 US v. Weatherton, No. 08-30542 Defendant’s probation violation sentence is affirmed where: 1) the District Court’s order that Defendant regularly undergo psychosexual evaluations was reasonable given Defendant’s history as a sex offender; and 2) Defendant was given proper notice of his non-Guidelines sentence.
U.S. 6th Circuit Court of Appeals, April 29, 2009 Nichols v. US, No. 05-6452 Defendant’s bank robbery conviction is affirmed where Defendant alleged that his counsel performed ineffectively by failing to preserve a future change-in-the-law agreement, but Defendant failed to show prejudice because the only way he could have obtained a favorable sentence was by petitioning for certiorari, which he did not do.
U.S. 7th Circuit Court of Appeals, April 28, 2009 US v. Perez, No. 07-3947 Sentence for violation of conditions governing supervised release is vacated and remanded for the judge to craft a new sentence reflecting his original intent. Amended sentence for violation of defendant’s other supervised release order is vacated and original sentence reinstated where the judge lacked jurisdiction to reopen the revocation proceedings.
U.S. 7th Circuit Court of Appeals, April 30, 2009 US v. Rosenbohm, No. 08-2620 Sentence for sexually exploiting children and producing sexually explicit images of minors is affirmed where: 1) the district court did not err in sentencing defendant to a mandatory life sentence; and 2) defendant’s prior Illinois conviction for aggravated criminal sexual assault constitutes a prior sex conviction under 18 U.S.C. sec. 3559(e).
U.S. 7th Circuit Court of Appeals, May 01, 2009 US v. Olofson, No. 08-2294 Conviction for knowingly transferring a machine gun is affirmed where: 1) district court properly rejected defendant’s proposed jury instruction as the instruction was not an accurate statement of the law; 2) the evidence presented at trial was sufficient to sustain defendant’s conviction; 3) the court properly rejected defendant’s argument that the statutes defendant was convicted under were unconstitutionally vague; and 4) the court did not abuse its discretion in denying defendant’s expert witness a sequestration exemption as defendant did not show that the presence of his expert in the courtroom during the testimony of the government’s firearms expert was essential to the presentation of his case; and 5) the court did not abuse its discretion in denying defendant’s motion to compel the production of evidence he had requested from the government.
U.S. 8th Circuit Court of Appeals, April 27, 2009 US v. Clark , No. 08-2386 Sentence for drug crimes is affirmed where: 1) modification of a defendant’s sentence under 18 U.S.C. sec. 3582(c)(2) does not constitute a full resentencing; and 2) the district court fully considered and adequately addressed the relevant 18 U.S.C. sec. 3553(a) factors based on the court’s statements at defendant’s initial sentencing and its determination that sentences at the top of the sentencing guidelines ranges were appropriate following both the initial sentencing and the 18 U.S.C. sec. 3582 modification proceedings.
U.S. 8th Circuit Court of Appeals, April 27, 2009 US v. Torres , No. 08-2703 Sentence for drug crimes is affirmed where: 1) district court did not abuse its discretion in rejecting defendant’s request for a downward departure of his sentence as there was no sentencing manipulation; and 2) the court did not abuse its discretion in refusing to grant a downward variance from the Sentencing Guidelines range based on the 18 U.S.C. sec. 3553(a) factors as its decision to deny defendant a variance and sentence him at the bottom of his Guidelines range was reasonable.
U.S. 8th Circuit Court of Appeals, April 27, 2009 US v. Jones, No. 08-2710 Sentence for possession of child pornography is affirmed where: 1) district court did not commit Rita error, as its explanation of its findings of fact with respect to the 18 U.S.C. sec. 3553(a) factors and its sentencing decision was sufficient; 2) the court did not commit a Gall error as it made an individualized assessment of the case; and 3) the court did not abuse its discretion in denying defendant’s request for a downward variance based on his argument that the guidelines for sex crimes involving children do not exemplify the Sentencing Commission’s characteristic institutional role.
U.S. 8th Circuit Court of Appeals, April 28, 2009 Shelton v. Purkett, No. 08-1833 District court’s denial of plaintiff’s petition for habeas corpus is affirmed where: 1) trial court’s action in sending exhibits to the jury without plaintiff’s counsel’s present did not violate his Sixth Amendment right to counsel as the state court finding that the trial court would have sent exhibits to the jury even if plaintiff’s counsel had been present was not contrary to nor an unreasonable application of Supreme Court precedent; and 2) counsel’s failure to raise the issue in his motion for new trial did not constitute ineffective assistance of counsel, as plaintiff could not establish prejudice since there is no reasonable probability that the trial court would have changed its ruling had his attorney included the issue.
U.S. 8th Circuit Court of Appeals, April 28, 2009 US v. Barnum , No. 08-2824 Conviction for firearms possession is affirmed where: 1) the district court did not err in denying plaintiff’s motion to suppress evidence as the totality of the circumstances demonstrated that the officer reasonably believed defendant had voluntarily consented to the search of his person and vehicle; and 2) the court did not err in finding that defendant’s voluntary consent to the searches purged the taint of any Fourth Amendment violation arising from the traffic stop under the Brown factors.
U.S. 8th Circuit Court of Appeals, April 28, 2009 US v. Bacaam , No. 08-3242 Conviction for failure to register as a sex offender is affirmed where the district court properly denied defendant’s motion to dismiss the indictment as he had adequate notice of his registration obligations based on the information provided to him in his California registration forms, even if the notice did not explain that a failure to register would be a violation of federal law and state law.
U.S. 8th Circuit Court of Appeals, April 29, 2009 US v. Lawson , No. 08-2173 Conviction and sentence for knowingly possessing a computer containing child pornography is affirmed where: 1) the district court did not err in denying defendant’s motion to suppress statements he made to the officer as defendant was not in custody at the time he made the incriminating statements and thus the officer was not required to warn defendant of his Miranda rights; and 2) the court was aware of its discretion to depart downwards, and its decision to deny such a departure is not reviewable.
U.S. 8th Circuit Court of Appeals, April 30, 2009 Rucker v. Norris , No. 08-1970 Denial of claims brought under a petition for habeas relief is affirmed where: 1) trial court’s refusal to give a jury instruction on voluntariness was not a violation of plaintiff’s rights as the voluntariness of a confession is a matter decided by the court and not the jury; 2) state court decision that any error in excluding inmate testimony was harmless was not an unreasonable application of plaintiff’s constitutional rights under the Court’s ruling in Crane, as the evidence was cumulative; and 3) the state courts did not violate plaintiff’s right to due process and to present a complete defense in denying his postconviction petition to require additional fingerprint testing as the claim was procedurally barred since plaintiff raised no issue of federal constitutional law and cited no federal authority in the state courts.
U.S. 8th Circuit Court of Appeals, April 30, 2009 US v. DeMarce, No. 08-2026 Conviction and sentence for attempted aggravated sexual abuse and attempted sexual abuse of a minor is affirmed where: 1) the district court erred in finding defendant did not clearly invoke his right to silence, but the error was harmless as officers honored the right at the time it was invoked; 2) certain portions of testimony by victim’s mother were inadmissible hearsay, but the error did not require reversal as the testimony did not influence or had only the slightest influence on the verdict; 3) the court did not err in denying defendant’s motion for acquittal as the evidence was sufficient to support the conviction; 4) court did not err in denying defendant’s proposed jury instruction; and 5) defendant’s sentence under the Adam Walsh Act did not violate his equal protection rights, as the penalties serve Congress’s purpose of deterring sex offenders and are rationally related to the objective of protecting children.
U.S. 8th Circuit Court of Appeals, April 30, 2009 US v. Lopez, No. 08-3043 Conviction for drug crimes is affirmed where the district court did not err in denying defendant’s motion to suppress evidence obtained during a traffic stop as defendant’s traffic violations established probable cause for the stop.
U.S. 8th Circuit Court of Appeals, April 30, 2009 US v. Clark , No. 08-3335 Sentence for firearms possession is affirmed where the district court did not err in examining the prior plea agreement and the undisputed facts in the current presentence report to determine that defendant’s prior conviction for unlawful possession of a firearm under 18 U.S.C. sec. 922(g) was a crime of violence, as the statute is overinclusive and encompasses both non-violent crimes and crimes of violence.
U.S. 8th Circuit Court of Appeals, May 01, 2009 US v. Starfield, No. 08-2602 Sentence for firearms possession is affirmed where: 1) the court did not commit procedural error and abuse its discretion in sentencing within the guidelines range; and 2) the court studied the record, considered the parties’ arguments, knew the Guidelines were advisory and weighed considerations bearding directly on the 18 U.S.C. sec. 3553(a) factors.
U.S. 9th Circuit Court of Appeals, April 29, 2009 Farmer v. Baldwin, No. 06-35635 In a murder prosecution, the dismissal of Petitioner’s habeas petition is reversed where: 1) the District Court erred in ruling that Petitioner had not fairly presented his claims in state court; and 2) Petitioner complied with the Oregon Supreme Court’s rules of practice by incorporating his appellate brief by reference.
U.S. 9th Circuit Court of Appeals, April 29, 2009 US v. Godinez-Ortiz, No. 08-50337 The District Court’s order committing Defendant to a medical facility for determination of whether to issue a dangerousness certificate is affirmed where the District Court properly found that a substantial probability did not exist that Defendant would become competent to stand trial.
U.S. 10th Circuit Court of Appeals, April 28, 2009 US v. Otero, No. 08-2154 In a mail fraud prosecution, the grant of Defendant’s motion to suppress is reversed where the government obtained the evidence at issue in a search of Defendant’s computer pursuant to the good-faith exception to the exclusionary rule, as the officers who obtained the warrant received legal advice and limited the scope of their search.
U.S. 10th Circuit Court of Appeals, April 29, 2009 US v. Urbano, No. 08-3147 Defendant’s drug and firearm conviction and sentence are affirmed where 18 U.S.C. section 922(g)(1) does not require an individual showing of an effect on interstate commerce so long as the firearm at issue has traveled across state lines in the past.
U.S. 11th Circuit Court of Appeals, April 27, 2009 US v. Carter, No. 08-14460 In a drug prosecution, the denial of Defendant’s motion to suppress is affirmed, where Defendant was on probation, the police had reasonable suspicion to conduct a warrantless search of Defendant’s home, and the government had a high interest in preventing future crime by Defendant, given his prior drug and battery offenses.
U.S. 11th Circuit Court of Appeals, April 27, 2009 US v. Aldrich, No. 08-15556 Defendant’s sentence for enticement of a minor to engage in sexual conduct is affirmed, where masturbation in front of a web camera constitutes “sexual contact” under U.S.S.G. section 2G2.1(b)(2)(A), and Defendant did not need to “harass” the victim to qualify for the Section 2G2.1 enhancement.
Supreme Court of California, April 27, 2009 People v. Bonnetta, No. S159133 Judgment of the court of appeals reversing a trial court order striking the additional terms of imprisonment required or authorized by the enhancement allegations is affirmed where: 1) the mandatory requirement under Penal Code sec. 1385 that the reasons for a dismissal be set forth in an order entered upon the minutes was not met; and 2) the district attorney did not waive the error by failing to inspect the written record after the hearing to ensure that the trial court had complied with sec. 1385’s requirements. The cause is remanded to the court of appeal to enter judgment reversing the judgments of conviction, and in turn remanded to the trial court to correct the defect by setting forth its reasons in a written order entered upon the minutes or to revisit its earlier decision.
Supreme Court of California, April 30, 2009 People v. Gaines, No. S157008 Court of appeals judgment reversing conviction is affirmed where the trial court erred in denying defendant’s Pitchess motion without first examining requested records in camera to determine whether they contained relevant information. The trial court’s erroneous denial of a Pitchess motion is not reversible per se, as failure to disclose relevant information in confidential personnel files is reversible only if there is a reasonable probability of a different result had the information been disclosed.
Supreme Court of California, April 30, 2009 People v. Lawrence, No. S160736 In an action involving a criminal defendant’s waiver of right to counsel, court of appeal’s judgment is reversed where the trial court did not abuse its discretion in denying defendant’s midtrial request to revoke his Faretta waiver of counsel, particularly considering defendant’s failure to articulate a compelling reason for revoking the waiver and the likely delay and disruption that it would cause.
New York Court of Appeals, April 30, 2009 People v. Mattocks, No. 59 Defendant’s forgery conviction is affirmed, where N.Y. Penal Law article 170 applies to forgery of a subway ticket because: 1) a ticket constitutes a “written instrument”; and 2) deceiving the computer that reads the tickets amounts to “false alteration” under that statute.
New York Court of Appeals, April 30, 2009 People v. Goldstein, No. 67 Defendant’s reckless endangerment sentence is affirmed, where Defendant sought to withdraw his guilty plea on the ground that it did not benefit him, but the plea allowed Defendant to receive concurrent rather than consecutive sentences.
California Appellate Districts, April 28, 2009 People v. Zanoletti, No. B199682 Conviction for insurance fraud is affirmed where: 1) a defendant cannot be convicted of multiple violations of Penal Code section 550 (a) for the same act, but defendant-wife’s multiple convictions were proper as they were based on different acts of fraud; and 2) the single-intent-and-plan doctrine was inapplicable to defendant’s crimes as defendant committed separate violations of the code.
California Appellate Districts, April 28, 2009 County of Los Angeles v. Fairmont Specialty Group, No. B202469 In an action involving the forfeiture of a bail bond, trial court’s judgment is affirmed where: 1) no election to seek extradition can be made when an extradition request would be futile or not feasible, and thus the forfeiture will not be vacated and the bond will not be exonerated under Penal Code section 1305; and 2) there was sufficient evidence to support the trial court’s conclusion that it was not feasible for the fugitive to be extradited from Honduras. .
California Appellate Districts, April 28, 2009 People v. Magallanes, No. G040133 Conviction for carjacking and receipt of stolen property is affirmed in part and reversed in part where: 1) trial court did not err in denying defendant’s motion for judgment of acquittal as the evidence that the carjacking was accomplished by the use of fear was sufficient to support defendant’s conviction; and 2) under Penal Code section 496 (a), defendant cannot be convicted of both carjacking and receipt of stolen property when the property in question is the vehicle taken during the carjacking.
California Appellate Districts, April 29, 2009 People v. Watts, No. C056491 Conviction for firearms possession is affirmed where the trial court properly denied defendant’s request to represent himself as his conduct in court prior to trial demonstrated that he was unable to follow procedural rules and courtroom protocol even when acting under the guidance of counsel.
California Appellate Districts, April 29, 2009 People v. Frazier , No. C057684 Sentence for assault by means of force likely to produce great bodily injury is affirmed where the sentencing enhancement stands as sufficient evidence supported jury’s determination that defendant personally inflicted great bodily injury on the victim. .
California Appellate Districts, April 29, 2009 People v. Henning, No. C058105 Conviction for financial elder abuse is affirmed where: 1) the jury was given only the erroneous portion of CALCRIM No. 1804 regarding corroboration, and was thus not instructed correctly that the corroborating writing must be false and was not instructed as to the other possible methods of corroboration; but 2) the error was manifestly harmless under any standard of review.
California Appellate Districts, April 29, 2009 In re K.F., No. H032977 In an action challenging a restitution order, trial court order is affirmed with modifications where: 1) there was no evidence that the ambulance services constituted an incurred cost for purposes of restitution and thus the cost of of ambulance services should be subtracted from the restitution order; 2) there was insufficient evidence of wage loss by the victim; and 3) the award in the restitution order of the amount representing state disability benefits paid to the victim rather than losses incurred by him should be subtracted from the order.
Texas Court of Criminal Appeals, April 29, 2009 Woodall v. State, No. PD-0453-07 Defendant’s driving while intoxicated conviction is reversed, where Defendant failed to preserve his claim that the trial court refused to permit Defendant to impeach the state’s expert, as defense counsel told the trial court he would make a proffer but never did so.
Texas Court of Criminal Appeals, April 29, 2009 Barrios v. State, No. PD-0891-08 Defendant’s murder conviction is affirmed, where the trial court properly instructed the jury that it must acquit Defendant of murder before it could consider the lesser included offense of robbery, and the instruction was sufficiently clear.
Texas Court of Criminal Appeals, April 29, 2009 Simmons v. State, No. PD-0791-08 The reversal of Defendant’s aggravated robbery conviction is reversed, where Defendant argued that the state only offered accomplice testimony in obtaining Defendant’s conviction and that Tex. Code Crim. Proc. section 38.14 thus barred the conviction, but in fact a reasonable jury could have convicted based on the non-accomplice evidence.
Texas Court of Criminal Appeals, April 29, 2009 Ex Parte Reedy, No. AP-75862 In a murder prosecution, the denial of Petitioner’s habeas petition is affirmed in part, where Petitioner waived his right to claim that his guilty plea was coerced, but reversed in part, where Petitioner’s waiver was invalid with respect to his claim of ineffective assistance of counsel.