19 F.3d 547
28 Fed.R.Serv.3d 433
Nancy ARMIJO, personal representative of the Estate of LuzArmijo, Deceased, Plaintiff-Appellant/Cross-Appellee,v.ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a Delawarecorporation, Defendant-Appellee/Cross-Appellant.
Nos. 91-2084, 91-2088.
United States Court of Appeals,Tenth Circuit.
March 22, 1994.

Chris Key, Albuquerque, NM, for plaintiff-appellant/cross-appellee, Nancy Armijo.
John S. Thal of Modrall, Sperling, Roehl, Harris & Sisk, Albuquerque, NM (Timothy C. Holm of Modrall, Sperling, Roehl, Harris & Sisk, Albuquerque, NM, with him on the brief), for defendant-appellee/cross-appellant.
Before SEYMOUR, Chief Judge, and HOLLOWAY and McWILLIAMS, Circuit Judges.
HOLLOWAY, Circuit Judge.

1
The plaintiff-appellant, Nancy Armijo (Armijo), brought this wrongful death diversity action as the personal representative of the estate of her husband, Luz Armijo, against the Atchison, Topeka, and Santa Fe Railway Company (Santa Fe).  After a period of discovery, Santa Fe moved for a partial summary judgment on Armijo's claim that Santa Fe negligently failed to provide adequate warnings of the crossing at issue.  Santa Fe argued there was preemption of such a state law claim by federal action.  The district judge granted partial summary judgment for Santa Fe, upholding its preemption theory.  754 F.Supp. 1526 (1990).  In addition, the judge granted a motion in limine by Armijo to exclude all evidence relating to a potential "seat belt defense" by Santa Fe.  The judgment embodying both rulings was certified as final under Fed.R.Civ.P. 54(b), and this appeal followed.

2
* Luz Armijo was killed when his car collided with a Santa Fe train at the North Gabaldon Road crossing, north of Belen, New Mexico, on October 23, 1987.  Nancy Armijo instituted this wrongful death action in March 1989 against Santa Fe, asserting a claim of negligent failure to provide adequate warnings of the crossing and of negligent operation of its train through the crossing.  She also made a claim for punitive damages, alleging that the Santa Fe's conduct in failing to cure the dangerous condition of the crossing was reckless, willful and wanton and in complete disregard of the decedent's safety.  As noted, Santa Fe moved for a partial summary judgment on the claim of negligence in not providing adequate warnings, arguing that federal law had preempted such a state common law claim of negligence respecting railroad crossing safety.  Armijo filed a motion in limine to exclude all evidence concerning her husband's use or failure to use his seat belt at the time of the accident.  She argued that N.M.Stat.Ann. Sec. 66-7-373(B) (Supp.1990) prohibited consideration of failure to use a seat belt in determining apportionment of fault or damages.

3
The district judge granted Santa Fe's motion for a partial summary judgment, upholding its preemption theory.  He simultaneously granted Armijo's motion to exclude the seat belt evidence.  In a separate judgment, the judge ordered that Santa Fe have judgment "on plaintiff's claims that defendant had a duty to install additional warning devices at the railroad-highway crossing at issue," and declared the judgment as set forth to be a final judgment pursuant to Fed.R.Civ.P. 54(b).  The judgment also stated that the court's ruling on seat belt defense would be included in the same Rule 54(b) "final judgment."1  Appellant's Appendix at 72.  Mrs. Armijo timely appealed.

II
A.

4
Congress has developed a detailed scheme to address the problem of railroad grade crossing safety.  In the Federal Railroad Safety Act of 1970 (FRSA), 84 Stat. 971, 45 U.S.C. Secs. 421-447 (1988 ed. and Supp.  II), Congress directed the Secretary of Transportation to study and develop solutions to safety problems posed by grade crossings.  45 U.S.C. Sec. 433.  In order to promote national uniformity in rules and regulations relating to railroad safety, Congress gave the Secretary broad powers to "prescribe, as necessary, appropriate rules, regulations, orders and standards for all areas of railroad safety...."  Sec. 431(a).  Section 434 governs the preemptive effect of those regulations.  It permits a state to adopt or continue in force laws, rules, and regulations until the Secretary adopts a rule, regulation, or standard "covering the subject matter of such State requirement."  45 U.S.C. Sec. 434.

5
In the Highway Safety Act of 1973, 87 Stat. 282, 23 U.S.C. Sec. 130, et seq., Congress again addressed railway-highway crossings, providing for the "entire cost of construction of projects for the elimination of hazards of railroad-highway crossings...."  Regulations issued under the Highway Safety Act require that states adopt the Federal Highway Administration Manual on Uniform Traffic Control Devices for Streets and Highways (MUTCD) in order to receive federal highway funding.  23 C.F.R. Secs. 655.601, 655.603(b)(1) (1987).

6
Santa Fe argues that these federal regulations and New Mexico's adoption of MUTCD preempted state law concerning the installation of warning devices at railroad crossings.  After the argument of this appeal, this court upheld a similar preemption argument, which was premised on the adoption by Kansas of the MUTCD, in Hatfield v. Burlington Northern R. Co., 958 F.2d 320 (10th Cir.1992) (Hatfield I ).   Shortly after our opinion in Hatfield I, the Supreme Court granted certiorari in a case that also raised the issue of the extent to which the FRSA preempts state negligence law pertaining to the maintenance of, and the operation of trains at, grade crossings.  C.S.X. Transp., Inc. v. Easterwood, --- U.S. ----, 112 S.Ct. 3024, 120 L.Ed.2d 896 (1992).  We abated our proceedings in the instant case to await the decision of the Supreme Court in Easterwood.

7
In its Easterwood opinion in April 1993, the Supreme Court determined that the standard for preemption Congress established in Sec. 434 is a relatively strict one:  the federal regulation must cover the same subject matter as the state law.  C.S.X. Transp., Inc. v. Easterwood, --- U.S. ----, ----, 113 S.Ct. 1732, 1738, 123 L.Ed.2d 387 (1993).  Given the strict language of Sec. 434 and the presumption against preemption, the Court held that the general mandates of 23 C.F.R. pt. 924 did not preempt a state law claim that the railroad was negligent in failing to maintain adequate warning devices at a grade crossing.  Id. at ---- - ----, 113 S.Ct. at 1739-40.   Likewise, the Court held that the requirement that states comply with the MUTCD does not cover the subject matter of the tort law of grade crossings.  Id.  The MUTCD provides standards for traffic control installation but does not require their installation.  MUTCD at 1A-4.

8
The remaining arguable sources of preemption in grade crossing cases are the provisions of 23 C.F.R. Secs. 646.214(b)(2), (3), and (4).  These sections, unlike the MUTCD provisions, do establish requirements as to the installation of particular warning devices.  When these provisions are applicable, state tort law is preempted.  --- U.S. at ---- - ----, 113 S.Ct. at 1740-41.   Subsection (b)(2) is only applicable to crossings "located within the limits of or near the terminus of a Federal-aid highway project for construction of a new highway or improvement of an existing roadway."  Sec.  646.214(b)(2).  For projects in which "federal funds participate in the installation of [warning] devices," regulations specify the type of warning devices that must be installed.  As the Supreme Court explained,

9
Thus, States must employ automatic gates with flashing light signals as part of any improvement project that concerns a crossing which features, inter alia, multiple tracks, high speed trains operating in areas of limited visibility, heavy vehicle or train traffic, or if a diagnostic team made up of "representatives of the parties of interest in [the crossing]" recommends them.  For federally funded installations at crossings that do not present the track conditions specified in Sec. 646.214(b)(3), "the type of warning device to be installed, whether the determination is made by a State ... agency, and/or the railroad, is subject to the approval of the FHWA."  Sec.  646.214(b)(4).

10
Id. at ----, 113 S.Ct. at 1739 (footnote omitted).

11
The Supreme Court held that Secs. 646.214(b)(3) and (4) displace state decisionmaking authority by establishing a federal-law requirement that certain protective devices be installed or that federal approval be obtained.  Id. at ----, 113 S.Ct. at 1741.  "Indeed, Secs. 646.214(b)(3) and (4) effectively set the terms under which railroads are to participate in the improvement of crossings."  Id.  The Court concluded:

12
In short, for projects in which federal funds participate in the installation of warning devices, the Secretary has determined the devices to be used and the means by which railroads are to participate in their selection.  The Secretary's regulations therefore cover the subject matter of state law which, like the tort law on which respondent relies, seeks to impose an independent duty on a railroad to identify and/or repair dangerous crossings.

13
Id.  Under Easterwood, the determinative question in a particular case is whether the preconditions for the application of either regulation have been met, specifically, whether federal funds have participated in the installation of warning devices.2

14
Five days after issuing its Easterwood opinion, the Supreme Court vacated our opinion in Hatfield I and remanded the case to us for further consideration in light of Easterwood.  --- U.S. ----, 113 S.Ct. 1940, 123 L.Ed.2d 646 (1993).  Upon reconsideration, we in turn remanded the case to the district court for a specific determination of whether federal funds participated in the installation of warning devices in the railroad crossing at issue there.

15
If so, the court must determine when and how participation occurred.  If the court finds participation did not occur or did not take place until after Mr. Hatfield's incident, the court must conclude state law was not preempted for the purposes of this suit.

16
Hatfield v. Burlington Northern R. Co., 1 F.3d 1071, 1072-73 (10th Cir.1993) (Hatfield II ).

17
In our order on remand, it was necessary for us to determine the precise meaning of participation of funds.  Because preemption is premised on the injection of federal funds into a project, we concluded that participation must be a significant event.  Id. at 1072.   Given the presumption against preemption, "logic dictates that more than a casual financial connection between the federal government and the project has to exist before that project is governed and circumscribed by federal regulations."  Id.  Thus, the degree of federal participation must be significant.  However, because the term "funds" suggests a fungibility that covers more than the expenditure of cash, federal participation may consist of other resources, such as significant personnel time remunerated by federal funds.  Id.B.

18
In her memorandum to us addressing the effect of Easterwood, Armijo argues that Easterwood mandates reversal of the district judge's preemption ruling and remand for reinstatement of this case on the trial docket.  She says that preemption in these circumstances occurs only when federal funds participate in the installation of the devices, under the teaching of Easterwood.   Appellant's Supplemental Memorandum at 6.  She argues that at the time of the accident in October 1987, not only had no construction been done, but the state agency had not yet requested the preliminary data necessary for an application for federal funding of the project.  Id. at 6-7.  Since no federal funding had been approved and no federal funds had been expended at the time of the accident in question, federal funds did not "participate in the installation of [needed warning] devices," and no federal preemption occurred.  Id. at 7.

19
On the other hand, Santa Fe argues that Easterwood mandates a holding that preemption occurred when there was federal participation in the decision to upgrade warning devices at the railroad crossing pursuant to 23 C.F.R. Sec. 646.214.  Appellee's Supplemental Memorandum at 3.  Santa Fe points out that a diagnostic team had recommended that the North Gabaldon crossing be included in the state program for federally funded railroad crossing improvements and that it be upgraded by installation of "flashers and gates."   Appellee's Supplemental Memorandum at 5 (citing Appellee's Supplemental Appendix at 50, 53).  Santa Fe urges us to conclude that the recommendation of the diagnostic team makes Sec. 646.214(b)(3) applicable and that therefore state tort law was preempted.

20
We are not persuaded by Santa Fe's arguments.  We have been instructed that there is a "presumption against preemption," and that preemption will not lie unless it is the "clear and manifest purpose of Congress."  Easterwood, --- U.S. at ----, 113 S.Ct. at 1737 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)).  Under 23 C.F.R. Sec. 646.214 and Easterwood, preemption does not occur until "federal funds participate in the installation of warning devices."  --- U.S. at ----, 113 S.Ct. at 1741.

21
Based on the undisputed facts developed in the record, including the affidavits and depositions of critical witnesses, as of July 1984 the State had assigned the North Gabaldon crossing a priority rank of 14 out of 22 crossings contained in its five-year plan for crossing improvement projects.  However, this is not the critical event for preemption.  It was not until early November 1987, shortly after Mr. Armijo's accident on October 23, that the State requested that Santa Fe prepare design and cost estimates for the Gabaldon crossing.  San Miguel Affidavit, Appellant's Appendix at 46.  As the district judge noted, as of the time of the accident the State of New Mexico had not even requested a preliminary engineering report concerning upgrading the warning devices at the North Gabaldon Road crossing.  754 F.Supp. at 1529-30.   Moreover, approval of the project by the Federal Highway Administration, a necessary precondition for federal funding, Sec. 646.216(e), was not received by the State until November 18, 1988, more than a year after the accident.  Appellant's Appendix at 32.  Therefore, the record is clear that as of October 23, 1987, the preconditions for the application of Secs. 646.214(b)(3) and (4) were not met, and we must conclude that Mrs. Armijo's negligence claim is not preempted.

22
Accordingly, we are convinced that on the undisputed record before us, this case need not be remanded for further determinations on the preemption issue as was done in Hatfield.   On the contrary, we are persuaded that there is no evidence that the events necessary for preemption occurred before the accident on October 23, 1987.  Due to the error below on the preemption ruling, the order of partial summary judgment for Santa Fe must be reversed and the state law negligence issue remanded for further proceedings.  See Lusby v. Union Pacific R. Co., 4 F.3d 639, 642-43 (8th Cir.1993).

III

23
We must also consider Santa Fe's cross-appeal of the district judge's ruling regarding the seat belt defense.  As noted, the judge granted Armijo's motion in limine to exclude any evidence, argument or inference to be adduced by Santa Fe on the alleged failure of the decedent to use a seat belt.  This ruling was included in the final judgment entered with the Rule 54(b) finding for appeal.  We hold, however, that an appeal from the seat belt ruling does not lie at this time.

24
Rule 54(b) allows a court to "direct the entry of a final judgment as to one or more but fewer than all claims."   This may be done only where the district court first determines that the judgment is final.  Curtiss-Wright Corp. v. General Elect.  Co., 446 U.S. 1, 7, 100 S.Ct. 1460, 1464, 64 L.Ed.2d 1 (1980);  Wheeler Machinery v. Mountain States Mineral Enters., Inc., 696 F.2d 787, 789 (10th Cir.1983).  "[The judgment] must be a 'judgment' in the sense that it is a decision upon a cognizable claim for relief, and it must be 'final' in the sense that it is 'an ultimate disposition of an individual claim entered in the course of a multiple claims action.' "  Curtiss-Wright, 446 U.S. at 7, 100 S.Ct. at 1464 (quoting Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 436, 76 S.Ct. 895, 900, 100 L.Ed. 1297 (1956));  see also McKibben v. Chubb, 840 F.2d 1525, 1528 (10th Cir.1988).

25
The district court's finding of preemption clearly involved a dispositive ruling on Mrs. Armijo's state law claim of negligent failure to provide adequate warnings of the crossing.  However, the ruling on the motion in limine did not resolve a claim;  it merely rejected evidence of one defense to the negligence claims of Armijo.  The district court's inclusion of that separate ruling in the judgment entered under Rule 54(b) does not alter the fundamental character of that ruling on the seat belt evidence.  See Sears, Roebuck, 351 U.S. at 437, 76 S.Ct. at 900 ("The District Court cannot, in the exercise of its discretion, treat as 'final' that which is not final within the meaning of [28 U.S.C.] Sec. 1291.")  (emphasis in original).  The ruling on the motion in limine rejecting evidence pertaining to a defense cannot be considered as appropriate for an appeal under Rule 54(b).  In accordance with our duty to inquire into our jurisdiction, see McGeorge v. Continental Airlines, Inc., 871 F.2d 952, 953 (10th Cir.1989), we hold that we do not have appellate jurisdiction of the cross-appeal under 28 U.S.C. Sec. 1291 to review the district court's ruling on the motion in limine.

IV

26
Accordingly, in No. 91-2084, the partial summary judgment of the district court for Santa Fe is REVERSED.   In No. 91-2088, Santa Fe's cross-appeal is DISMISSED for lack of appellate jurisdiction of the issues raised therein.  The case is REMANDED for further proceedings consistent with this opinion.

1
 In addition, the trial judge stated in the judgment that his denial of the plaintiff's motion to amend the pretrial order and assert additional negligence theories was included in that same Rule 54(b) order.  However, that issue is not argued in this appeal

2
 At our request, the parties in the instant case filed memoranda addressing the effect of Easterwood on their appeals.  We have considered those memoranda in connection with the argument and briefing before us


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125 F.3d 815
97 Cal. Daily Op. Serv. 7518, 97 Daily JournalD.A.R. 12,124Hector Manuel AGUILAR, Petitioner-Appellant,v.Annie ALEXANDER, Acting Warden;  Attorney General of theState of California, Respondents-Appellees.
No. 96-55688.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Feb. 6, 1997.Decided Sept. 22, 1997.

Janet I. Levine, Michaelson & Levine, Los Angeles, CA, for petitioner-appellant.
Paul C. Ament, Deputy Attorney General, Los Angeles, CA, for respondents-appellees.
Appeal from the United States District Court for the Central District of California;  William D. Keller, District Judge, Presiding.  D.C. No. CV-95-01525-WDK(JR).
Before:  BOOCHEVER, KOZINSKI and JOHN T. NOONAN, Jr., Circuit Judges.
BOOCHEVER, Circuit Judge.

1
Hector Manuel Aguilar appeals the district court's denial of his petition for habeas corpus, alleging that his counsel at his state murder trial provided ineffective assistance.

FACTS

2
Hector Manuel Aguilar was convicted of first-degree murder by a jury in California state court for killing his girlfriend, Cecilia Chayra.  This account of the facts found by the state court appears in People v. Aguilar, 218 Cal.App.3d 1556, 267 Cal.Rptr. 879, 880-81 (1990).

3
The victim, Chayra, died in appellant's apartment between the hours of 9:15 p.m.  and 10:00 p.m.  on April 21, 1987.  Her death was caused by multiple stab wounds to her neck.  A 12-inch kitchen knife with a serrated blade, a box cutter, a stick and a baseball bat were found near her body, which was lying on the blood-soaked living room carpet.1  A blood-soaked shirt and Levis were found in the bedroom closet.  Blood stains were found in the kitchen, in the bathroom and on the living room wall near the front door.

4
As appellant was arrested outside his parents' home a few hours after the killing, his father asked what he had done, and appellant responded, "Termine a Cecilia," which means "I finished Cecilia off."

5
At appellant's booking, blood was noted on his clothing and person.  The stains were consistent with the victim's blood, but not with appellant's.  He was not under the influence of alcohol or drugs.

6
Chayra planned to terminate her relationship with appellant on the night she was killed because she feared he might be dealing cocaine.  Appellant, who used and sold cocaine, had become increasingly paranoid in the months preceding the killing, and feared that Chayra would turn him in to the police.

7
In his defense, appellant claimed he and Chayra had been experiencing difficulties with their relationship for several days prior to the evening of April 21, 1987, when they met at his apartment and he suggested they stop seeing each other.  Twice Chayra asked, "What?" and twice appellant repeated his statement.  Then, stating in a loud voice, "You can't do that," Chayra attacked him, throwing him off balance so that he dropped to his knees, and grabbing his shirt as she slapped at him, angrily repeating, "You can't do that."

8
Eventually, appellant was knocked flat on his back with Chayra on top of him.  They struggled for a while and then Chayra reached for a knife.  Believing she was about to stab him, appellant grabbed the knife.  Although he recalled hitting Chayra, and struggling with her for possession of the knife, appellant did not remember stabbing her.  When she stopped struggling with him he saw all the blood, then remembered nothing else until he reached his parents' home.

9
Psychological experts appointed to examine appellant concluded he suffered from paranoid personality traits which could have been caused or exacerbated by his cocaine use, and would impair his judgment and cause him to overreact if he felt threatened.

10
At trial, Aguilar admitted to the killing.  The major issue was whether he was guilty of first degree murder, second degree murder, or manslaughter.  A jury found him guilty of first degree murder, with an enhancement for the use of a deadly weapon.  The state court sentenced him to prison for 25 years to life.  The state appeal court affirmed his conviction in People v. Aguilar, supra, and the California Supreme Court denied the petition for review.

11
Aguilar filed a petition for a writ of habeas corpus in California Superior Court, including a claim that his attorney was ineffective.  All levels of the state court system denied the petition.

12
Having exhausted his state court ineffective assistance claim, Aguilar filed a habeas petition in federal district court.  The district court denied the petition.  Aguilar appeals, arguing that his trial counsel provided ineffective assistance.

DISCUSSION

13
To show ineffective assistance of counsel, [the defendant] must show that counsel made errors so serious that [she] was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment, and that the deficient performance prejudiced the defense.  There is a strong presumption that counsel's performance f[ell] within the wide range of professional assistance.

14
Tomlin v. Myers, 30 F.3d 1235, 1237 (9th Cir.1994) (citations omitted).  This court reviews a claim of ineffective assistance de novo.  Id. The decision whether to grant or deny a petition for habeas corpus is also subject to de novo review.  Crotts v. Smith, 73 F.3d 861, 864 (9th Cir.1996).  Aguilar claims that his trial counsel made three unprofessional and prejudicial errors:  she urged him to waive his attorney-client privilege to videotapes of hypnosis sessions without first reviewing the videotapes herself;  she advanced a defense theory that his cocaine use had made him paranoid;  and she did not aggressively pursue plea negotiations with the prosecutor.

I. Videotapes of hypnosis sessions

15
In California before the end of 1984, a witness who had undergone hypnosis to restore memory could not subsequently testify "as to all matters relating to those events, from the time of the hypnotic session forward."  People v. Shirley, 31 Cal.3d 18, 181 Cal.Rptr. 243, 273, 723 P.2d 1354, 1384 (1982).  This rule did not apply to a defendant who planned to testify, "to avoid impairing the fundamental right of an accused to testify in his own behalf."  Id.

16
In June 1982, the California constitution was amended to provide that all relevant evidence was admissible.  Cal. Const. art.  I, § 28.  California Evidence Code section 795, effective January 1, 1985, clarified the status of testimony following hypnosis, providing that a witness could testify after hypnosis if a series of conditions were met, including that "[t]he hypnosis was performed by a licensed medical doctor or psychologist experienced in the use of hypnosis."  Cal. Evid.Code § 795(a)(3)(D).  This was the state of California law at the time of Aguilar's trial.

17
Because Aguilar had little memory of the events surrounding Chayra's death, a court-appointed psychiatrist suggested Aguilar undergo hypnosis to enhance his recollection.  Defense counsel arranged for Aguilar to participate in twelve two-hour sessions, which were videotaped for a total of twenty-four hours of videotape.

18
The prosecution learned of the videotaped sessions after it had called its witnesses.  The judge held a hearing outside the jury's presence to determine whether Aguilar could testify, given his hypnosis.  Aguilar's attorney argued that the California statute applied only to witnesses other than defendants, citing Shirley.   The trial court, however, found that the statute applied to Aguilar, and that the hypnotist used did not satisfy the requirements of Cal Evid.Code § 795(a)(3)(D).

19
Nevertheless, the court did not automatically bar Aguilar's testimony.  Instead, it ruled that to block his testimony the prosecution, after viewing the videotapes, would have to show "the prosecution has been prejudiced or the witness has been so programmed that the noncompliance with the Evidence Code will fatally infect the validity of [Aguilar's] testimony."   In light of this ruling, Aguilar's counsel advised him to waive his attorney-client privilege and consent to the viewing of the tapes "for that purpose only ... we do not concede that the prosecution has a right to discovery of any statements made by the defendant to an ... expert who has been appointed under the attorney/client privilege."  Aguilar, 267 Cal.Rptr. at 883.   At the time that she advised him to waive the privilege, Aguilar's counsel had not viewed the tapes, except the single tape describing the actual stabbing incident.  [Red Br. p. 11 n. 7]

20
Aguilar's counsel sought a ruling that information derived from the tapes could not be used to impeach Aguilar, but the judge ruled it could be so used.  Aguilar's counsel again objected, and the court again ruled that the tapes could be used to impeach Aguilar.  Counsel then moved to exclude statements from the videotapes regarding Aguilar's encounter with DEA agents and his testimony in a grand jury proceeding regarding the murder of a DEA agent.  The court ruled that the statements were admissible, but promised to instruct the jury that they could not infer misconduct based on the statements.

21
After viewing the tapes, the prosecutor decided not to object to Aguilar's testifying.  When Aguilar did take the stand, however, the prosecutor in cross-examination used information from the videotaped statements Aguilar had made to the hypnotist.  The prosecutor questioned Aguilar about his testimony as a third-party witness before a federal grand jury investigating the killing of two DEA agents.  The prosecutor also questioned Aguilar about an interview with two Justice Department attorneys who allegedly had accused Aguilar of dealing cocaine.

22
The court admonished the jury that this evidence related to a collateral matter, and that Aguilar was not and had not been a suspect or defendant in any federal action.  "This matter is simply being brought up as a part of the overall pattern of conduct in this case and for that limited purpose.  So, you are not to attach any significance to the fact he was called as a witness before a United States grand jury."  Id. at 884.

23
On this habeas appeal, Aguilar argues that his counsel was ineffective in counseling him to waive his attorney-client privilege as to the videotaped hypnosis sessions.  Not only was it professionally incompetent for her to do so without viewing the tapes, he argues, but he was prejudiced because the prosecution used the evidence from the tapes to establish that as a drug dealer he premeditated Chayra's killing to silence her, making him guilty of first-degree murder.

A. Deficient performance

24
As the California Court of Appeal noted, the state court erred in holding that the statute could preclude Aguilar, the defendant, from testifying at his own trial.  Id. at 883.   That error resulted in his waiver of privilege concerning the tapes, the prosecution's discovery of incriminating statements, and the use of those statements in his subsequent impeachment.  Id.

25
It is a close call whether counsel acted "outside the wide range of professional assistance."   First, the waiver "was ... limited to the hearing on admissibility of his post-hypnotic testimony."  Id. at 884.   When she initially advised Aguilar to waive the privilege, counsel reasonably could expect that the information on the videotapes would not be used other than at that hearing.  Second, counsel's interpretation of the statute was correct.  Aguilar, as a defendant, was exempt from the provisions of § 795 limiting testimony by hypnotized witnesses.  Because the judge misinterpreted the statute, believing that it applied to defendants who testified on their own behalf, he suggested that the government review the tapes to determine whether the hypnosis would prevent Aguilar from testifying.  That action forced the issue of waiver on Aguilar.

26
Further, the state court had directed that it would decide whether Aguilar could testify only after the government viewed the tapes.  Presumably, if Aguilar refused to waive the privilege as to the tapes, the court would have ruled that he could not testify, as there would be no way of determining whether the hypnosis had so "programmed" Aguilar as to make his testimony invalid.  Because Aguilar's counsel risked losing his testimony if she did not advise him to consent to the waiver, the government argues that her actions can be construed as a tactical choice, and not ineffective assistance.  Crotts, 73 F.3d at 866 n. 4.  (counsel's conduct not ineffective assistance if it can be construed as the result of a tactical decision).

27
Finally, the prosecution's case for a first-degree murder conviction was strong.  To show premeditation and deliberation, the prosecution presented testimony that Aguilar suspected that Chayra would turn him in to the police;  Chayra had intended to break up with Aguilar, and her coldness the day of the murder had worried him;  and the physical evidence showed an extended struggle, supporting an intent to kill rather than brief violence in the heat of passion.  Aguilar also was able to present an innocent explanation for the presence of his baseball bat and box cutter near Chayra's body.  Aguilar's testimony was thus needed to present a different version of events and establish a lesser degree of culpability.

28
Counsel was faced with a Hobson's choice:  waive the privilege or lose the opportunity of having Aguilar testify.  To the extent that counsel urged the waiver to preserve Aguilar's opportunity to testify, that decision constituted a trial strategy and not deficient performance.

29
We cannot ignore, however, that Aguilar's counsel apparently did not herself, or have others, review more than one of the twelve two-hour tapes.  It surely was her professional duty to know the contents of the tapes before counselling Aguilar to waive his privilege.  Her failure to do so casts doubt on whether she made a tactical decision.  Allowing the prosecution to view twenty-two hours of videotape of her client's hypnosis, without knowing what the tapes contained, cannot easily be characterized as informed trial strategy.

30
It would have been far preferable for counsel to request that she be given time to screen the tapes.  We need not decide, however, whether her failure to view them was deficient performance, because even if it was, Aguilar has not demonstrated that the error prejudiced him.

B. Prejudice

31
To show prejudice, Aguilar must prove that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."  Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984).

32
Aguilar argues that if the evidence of his peripheral involvement in the DEA murder investigation and of federal officials' inquiry regarding his cocaine dealing had not been introduced during cross-examination, there is a reasonable probability that he would have been convicted of second-degree murder or manslaughter rather than first degree murder.  We disagree.

33
The prosecution, Aguilar states, used the evidence to establish that as a drug dealer, he had the motive to kill Chayra to silence a potential witness.  We disagree.  The government introduced considerable evidence from sources other than the tapes to establish Aguilar's involvement with cocaine and his motivation for murder.  There was evidence that Chayra wanted to break up with Aguilar because of his involvement with cocaine, and that Aguilar thought that Chayra was going to turn him in;  Aguilar had discussed cocaine sales with his brother, and weighed and packaged a large quantity of cocaine for sale;  Aguilar had discussed "snitches" and believed that someone who was following him, as well as Chayra, was going to turn him in to the police.  Aguilar admitted he had procured drugs for friends.  [CR 22 p. 56] The evidence derived from the tapes thus was largely cumulative, especially given that other evidence tended to show that Aguilar feared "snitches" in general and Chayra in particular.  [CR 22 p. 6] This was relevant to the prosecution's theory that silencing Chayra was a motive for a premeditated killing.

34
Second, the trial court gave the jury a limiting instruction not to attach any significance to Aguilar's testimony before the grand jury, and instructed the jury that the intimations by federal prosecutors that Aguilar was involved in drug dealing "are not admitted for the truth of the matter."  [Red Br. p. 14] Juries are presumed to follow the court's instructions.  Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 1709, 95 L.Ed.2d 176 (1987).  There are some extreme situations in which curative instructions will not neutralize the prejudice when evidence is improperly admitted.  See, e.g., United States v. Bland, 908 F.2d 471, 473 (9th Cir.1990) (court's comments that defendant on firearms charge was child molester and killer cannot be cured by instruction);  United States v. Gillespie, 852 F.2d 475, 479 (9th Cir.1988) (same for testimony that defendant on charge of child molestation had homosexual relationship with adopted father).  This was not such an extreme situation.

35
Aguilar has not demonstrated prejudice from his counsel's advice to waive his privilege and allow the prosecutor to view the videotapes.

II. Counsel's defense strategy

36
Aguilar's counsel argued at trial that Aguilar, who had been using cocaine on weekends for five or six years, had thus exacerbated his paranoid tendencies, testified to by two expert witnesses.  The defense theory was that as a result of his drug use Aguilar honestly but unreasonably believed that he needed to defend himself against Chayra and so was guilty only of manslaughter.

37
Under California law, if a defendant kills with an honestly held but unreasonable belief that he needs to defend himself, he is not guilty of malice and can be convicted only of voluntary manslaughter.  People v. Flannel, 25 Cal.3d 668, 160 Cal.Rptr. 84, 90, 603 P.2d 1, 7 (1979) (as modified).  Aguilar claims that his counsel was deficient in arguing that this theory applied to him, because it is not available to a defendant who is voluntarily intoxicated.

38
Aguilar is wrong on two counts.  First, counsel never argued-and the evidence negated-that Aguilar was under the influence of drugs at the time of the killing.  Second, imperfect self-defense is available to an intoxicated defendant, so even if the voluntariness of Aguilar's drug use is relevant, it did not preclude the defense.  See People v. Cameron, 30 Cal.App.4th 591, 36 Cal.Rptr.2d 656, 661 (1994).  The defense theory was not legally in error.

39
Aguilar also argues that the defense advanced by his counsel prejudiced him by emphasizing his cocaine use.  Yet his use of illegal drugs was already established by evidence introduced by the prosecution, and his counsel's use of his habit was an attempt to turn that evidence to his advantage.  Counsel's strategic choice did not constitute error, and in any event Aguilar has shown no prejudice.

III. Failing to conduct plea negotiations

40
Finally, Aguilar argues that his attorney should have been more aggressive in pursuing plea negotiations with the prosecutor, and that her failure to do so prejudiced him.

41
Aguilar's counsel submitted a declaration stating that she and Aguilar had discussed the possibility of a plea bargain, perhaps for voluntary manslaughter.  The state prosecutor's office, however, would not make any offers.  Although Aguilar's counsel initiated plea negotiations with the prosecutor, the prosecutor refused to offer anything less than first-degree murder.  [Red Br. p. 21]

42
Aguilar emphasizes the importance of plea bargaining and submits that failure to seek a plea bargain is evidence of incompetence.  In this case, however, Aguilar's counsel stated that she did seek a plea bargain but was rebuffed.  Aguilar apparently believes that his trial counsel should have tried harder, submitting a declaration from his attorney on appeal that in his experience it is rare that one attempt results in a plea disposition, and that it is "customary" for defense attorneys to continue to press for negotiations.  [ER pp. 65-66]

43
These "shoulds" and "customary" practices do not rise to the level of showing that Aguilar's counsel's performance was deficient.  Instead, they are differences in the strategy, tactics, and styles of defense attorneys.  If Aguilar's counsel had advised him to plead guilty without attempting to obtain a plea to something less than first-degree murder, that might be below the standard of reasonable performance.  See Hawkman v. Parratt, 661 F.2d 1161, 1171 (8th Cir.1981).  In this case, counsel sought plea negotiations, was rejected, and proceeded to trial, where she argued that her client was not guilty of first-degree murder.  No error occurred.

44
AFFIRMED.

45
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1 Appellant's explanation that he had been invited to play baseball, and planned to use the box cutter to remove worn tape from his bat handle, was corroborated by a message on his telephone answering machine from Richard Bardales, as well as Bardales' testimony at trial.


537 U.S. 922
MILLERv.ABC, INC., ET AL.
No. 02-5541.
Supreme Court of United States.
October 7, 2002.

1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.

2
C. A. 7th Cir. Certiorari denied.


125 So.2d 221 (1960)
Leoda Dubois PREJEAN et al., Plaintiff and Appellant,
v.
BITUMINOUS CASUALTY CORPORATION, Defendant and Appellee.
No. 123.
Court of Appeal of Louisiana, Third Circuit.
December 19, 1960.
Edwards & Edwards, by Nolan J. Edwards, Crowley, for plaintiff appellant.
Charles T. Everett, Crowley, for defendant appellee.
Before FRUGE, CULPEPPER and TATE, JJ.
CULPEPPER, Judge.
This is a suit brought under the Workmen's Compensation Act by the legal dependents of Ogden Prejean for death benefits under the provisions of LSA-R.S. 23:1231. From an adverse judgment in the lower court, plaintiffs have appealed.
There is very little dispute as to the facts. The evidence discloses that Ogden Prejean had worked as a policeman for the City of Crowley for approximately eight years. He was a patrolman and his principal duties consisted of driving the police patrol car about the streets of Crowley. In response to calls which he received over his automobile radio, the plaintiff investigated fights, burglaries, drunks, family troubles and law violations of all types. When necessary he made arrests and used such physical force as was necessary in doing so. He also watched for traffic violations and generally performed the duties of a law enforcement officer. On the morning of Saturday, February 22, 1958, the plaintiff reported to duty at approximately 5:00 o'clock *222 a.m. and went on his usual patrol duty. He and a fellow officer, Wiltz C. Richard, rode in the same patrol car until daylight and then they separated and drove separate automobiles. Officer Richard testified that during the time he was with Prejean they simply rode around in a patrol car and made no arrests nor did anything else which required any physical exertion. The record is entirely void of any evidence as to Prejean's activities from the time he left Officer Richard until approximately 10:00 o'clock a.m. when he drove back to the police station and told the desk sergeant, Fred D. Spell, that he was "feeling awful bad and was going to the hospital to get a dose of medicine for his stomach." Prejean then left the police station and walked to the hospital, which is just around the corner from the police station. At the hospital Prejean was seen by Dr. H. L. Gardiner, who diagnosed a heart attack. Prejean was immediately hospitalized and later that day was seen by Dr. Bliss K. Shafer, a specialist in internal medicine, who confirmed the diagnosis of coronary occlusion due to pre-existing coronary artery disease and resulting in acute posterior myocardial infarction. It is unnecessary here to say anything more about Prejean's further medical history than to state that he died on November 14, 1958, of cardiac arrest resulting, at least in part, from the heart attack which he suffered while on duty as a patrolman on February 22, 1958.
The sole issue for determination by the Court is whether there is any causal relation between Prejean's employment and the heart attack which he suffered on February 22, 1958. In the absence of any evidence that on the morning of the attack Prejean was doing anything other than driving around in the patrol car, plaintiff has urged two possible theories under which she urges that this heart attack is covered by the Workmen's Compensation Act. First of all, plaintiff argues that the weather was rather cool and drizzly and since Prejean was not wearing an overcoat, unusual demands were made on his heart sufficient to induce the attack. Although it is true Dr. Shafer did testify that if an individual is not dressed properly cold weather can produce vessel spasm, the evidence in this case does not show that the weather was particularly cold, all of the witnesses having described the temperature as simply "cool". Furthermore, Officer Richard testified that Prejean was wearing a jacket which was certainly adequate for the cool temperature.
Plaintiff also argues that Prejean's general duties as a policeman over the previous eight years were such as to cause great mental and physical stress which was a contributing cause to this heart attack. The answer to this argument is simply that this type of previous activity over a period of time before the heart attack does not meet the legal requirement of an accident under our workmen's compensation law. A very similar factual situation was presented to our Supreme Court in the oftencited case of Nichelberry v. Ritchie Grocer Company, 196 La. 1011, 200 So. 330, 333, where the plaintiff, a common laborer, contended that his heart attack was caused by the heavy physical labor which he performed during his employment over a period of several months. In denying compensation benefits, our Supreme Court recognized the legal requirement of proving an accident under our workmen's compensation law, and held, as follows:
"The case therefore presents a situation where the plaintiff admittedly is suffering from a disease of the heart. When the disease began, what was its origin, and the rapidity with which it has progressed, are all matters of pure speculation. The mere fact that a workman develops heart disease while employed by another does not entitle him to compensation. The employer is not the insurer of his employees. There must be an accident to furnish the basis of any such claim, that is to say, something sudden, undesigned or unexpected and that accident must either cause or aggravate the disease which is the cause of the disability."
*223 The Nickelberry case has been followed many times by our Courts of Appeal and is still the law of this State. See Hastings v. Homewood Development Company, 1956, 84 So.2d 883, and Keene v. Carraway & McDougald Lumber Company, 1957, 95 So.2d 849.
In the instant case there is no evidence that Prejean did anything other than drive around in the police patrol car on the morning of his heart attack. There is no evidence that he performed any duties requiring physical exertion or placing him under mental stress sufficient to cause an extra demand upon his heart, thereby precipitating the coronary occlusion. None of the expert medical witnesses who testified expressed an opinion that there was any causal relationship between Prejean's employment and his heart attack.
Counsel for the plaintiff has cited Kraemer v. Jahncke Service, Inc., La.App., 83 So.2d 916, but in that case we actually find the Court denied recovery where a crane operator had done only minor supervisory work for two hours before his first heart attack, after which he stopped work and then suffered his fatal attack while dressing before leaving his employment. Clearly this case is of no assistance to the plaintiffs in the instant litigation. Plaintiff also cites Neldare v. Schuykill Products Company, Inc., La.App., 107 So.2d 487, where plaintiff's regular duties consisted of heavy physical labor at a cinder hearth under conditions of excessive heat and plaintiff suffered a heart attack while doing this type of work. The Court allowed recovery under the doctrine with which we agree completely, that it is not necessary that the attack be the result of unusual physical effort, if the diseased organ gives way while plaintiff is performing his usual and customary heavy duties. In the instant case there is no evidence that Prejean, immediately preceding his heart attack, was performing duties requiring heavy physical exertion.
The last case cited by plaintiff is Brian v. Employers Casualty Company et al., La. App., 111 So.2d 161, where the employee had suffered two previous attacks and had been instructed not to engage in strenuous physical activity, but, despite this advice, he performed heavy physical labor during the noonday heat and suffered a fatal attack approximately one hour later. The Court, on the basis of the expert medical testimony, found that there was a causal relationship. This case also is clearly of no assistance to the plaintiff here.
For the reasons hereinabove set forth, it is, therefore, our opinion that the judgment of the lower court must be affirmed. All costs of this appeal are assessed against the plaintiff.
Affirmed.