FILED
NOT FOR PUBLICATION JUL 15 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-15753
Plaintiff - Appellee, D.C. No. 2:04-cv-02628-LKK-
KJM-1
v.
LAMANCE COOKIE BERT, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, United States District Judge, Presiding
Argued and Submitted June 17, 2010
San Francisco, California
Before: SCHROEDER and BYBEE, Circuit Judges, and STOTLER, Senior
District Judge.**
Federal prisoner Lamance Cookie Bert appeals the district court’s order
denying his motion for relief under 28 U.S.C. § 2255. We have jurisdiction
pursuant to 28 U.S.C. § 2253 and review de novo the district court’s denial of the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Alicemarie H. Stotler, Senior United States District
Judge for the Central District of California, sitting by designation.
§ 2255 motion. United States v. Aguirre-Ganceda, 592 F.3d 1043, 1045 (9th Cir.
2010). We affirm.1
Bert contends that his trial counsel rendered ineffective assistance by failing
to move for a mistrial on two occasions. An ineffective assistance of counsel claim
requires a showing of both deficient performance and prejudice. Strickland v.
Washington, 466 U.S. 668, 687 (1984). Deficient performance is shown when trial
counsel’s performance “fell below an objective standard of reasonableness.” Id. at
688. Prejudice is shown when “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694.
Bert submits that counsel’s failure to move for a mistrial after counsel
learned that his statements about a missing juror were inadvertently broadcast to
the jury constituted ineffective assistance. Bert argues that jurors would be
“offended and biased against the defense where they believe the defense favors and
is playing up to the sole African-American juror over the remaining white jurors.”
However, “[t]he assessment of prejudice should proceed on the assumption that the
1
Because the parties are familiar with the facts and procedural history, we
do not restate them here except as necessary to explain our decision. See United
States v. Bert, 83 Fed. App’x 202 (9th Cir. Dec. 11, 2003) (unpublished); United
States v. Bert, 292 F.3d 649 (9th Cir. 2002); United States v. Bert, 40 Fed. App’x
466 (9th Cir. June 4, 2002) (unpublished).
2
decisionmaker is reasonably, conscientiously, and impartially applying the
standards that govern the decision.” Id. at 695. There was no discussion touching
on race during the trial. The trial court gave the instruction about what constitutes
evidence, and the jury is presumed to have followed that instruction. Given the
conclusive evidence produced against Bert, the district court properly found that
the inadvertent broadcast was not prejudicial.2
Bert also contends that his trial counsel rendered ineffective assistance by
failing to move for a mistrial after Bert was briefly restrained by court security
personnel within view of the jury after a power outage. However, given the
fleeting nature of the encounter and the restrained response by the officers, even
under Bert’s description of the events, Bert cannot show prejudice. When this
event is viewed in the context of the trial as a whole, there is no reasonable
2
The parties correctly point out that Strickland governs the inquiry into
whether Bert was prejudiced by his counsel’s failure to move for a mistrial. Under
Strickland, the view is on the result of the entire proceedings, and only those errors
that could jeopardize the result are prejudicial. See Berghuis v. Thompkins, 130 S.
Ct. 2250, 2264-65 (2010); Downs v. Hoyt, 232 F.3d 1031, 1038 (9th Cir. 2000)
(stating that the question under the prejudice prong “is not whether the verdict
would more likely than not have been different, but whether the defendant received
a fair trial, understood as a trial resulting in a verdict worthy of confidence,” and
holding that even if defendant “could show deficient performance” for counsel’s
failure to move for a mistrial, defendant could not “show that she did not receive a
fair trial, understood as a trial resulting in a verdict worthy of confidence”).
3
probability that the result of the proceedings would have been different had
counsel moved for a mistrial.
AFFIRMED.
4