728 N.E.2d 164 (2000)
STATE of Indiana, Defendant-Appellant,
v.
Eric D. HOLMES, Plaintiff-Appellee.
No. 49S00-9808-PD-436.
Supreme Court of Indiana.
May 19, 2000.
*167 Jeffrey A. Modisett, Attorney General of Indiana, Michael A. Hurst, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellant.
Susan K. Carpenter, Public Defender of Indiana, Steven H. Schutte, Joanna Green, Kathleen Cleary, Linda K. Hughes, Deputy Public Defenders, Indianapolis, Indiana, Attorneys for Appellee/Cross-Appellant. *165
*166 DICKSON, Justice.
This appeal is from a judgment granting in part and denying in part the post-conviction relief sought by Eric D. Holmes. He was convicted of two counts of murder[1] for the intentional killing of Charles Ervin and Theresa Blosl, one count of attempted murder,[2] one count of robbery,[3] and one count of conspiracy to commit robbery.[4] The jury could not reach a unanimous recommendation for or against the death penalty. After a sentencing hearing, the trial court sentenced the defendant to death for the intentional murder of Theresa Blosl and imposed sentences for terms of years on the other counts. On direct appeal, this Court vacated the defendant's conspiracy conviction and his sentence for class A felony robbery, ordered that a sentence for class C felony robbery instead be imposed, and affirmed the imposition of the death sentence and the other convictions and sentences. Holmes v. State, 671 N.E.2d 841 (Ind.1996), reh'g denied, (1997), cert. denied, 522 U.S. 849, 118 S.Ct. 137, 139 L.Ed.2d 85 (1997). In the subsequent post-conviction proceeding, the post-conviction court partially granted the defendant's petition for post-conviction relief, vacating the death sentence for prosecutorial *168 misconduct and ordering a remand to the trial court for a new penalty phase trial, but otherwise denied his petition. The State appeals from the post-conviction court's partial grant of post-conviction relief, and the defendant cross-appeals from the post-conviction court's partial denial of post-conviction relief. Finding error on an issue of law, we reverse the partial grant of post-conviction relief and hold that the defendant's petition for post-conviction relief should be denied.

Preliminary Considerations
Post-conviction proceedings do not afford criminal defendants the opportunity for a "super-appeal." Bailey v. State, 472 N.E.2d 1260, 1263 (Ind.1985); Langley v. State, 256 Ind. 199, 210, 267 N.E.2d 538, 544 (1971). Rather, post-conviction proceedings provide defendants the opportunity to raise issues that were not known at the time of the original trial or that were not available on direct appeal. Lowery v. State, 640 N.E.2d 1031, 1036 (Ind.1994) ("Post-conviction actions are special, quasi-civil remedies whereby a party can present an error which, for various reasons, was not available or known at the time of the original trial or appeal."), cert. denied, 516 U.S. 992, 116 S.Ct. 525, 133 L.Ed.2d 432 (1995). Thus, these proceedings do not substitute for direct appeals but provide a narrow remedy for subsequent collateral challenges to convictions. Weatherford v. State, 619 N.E.2d 915, 916-17 (Ind.1993). The petitioner for post-conviction relief has the burden of establishing his grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5).
As a general rule, when this Court decides an issue on direct appeal, the doctrine of res judicata applies, thereby precluding its review in post-conviction proceedings. Lowery, 640 N.E.2d at 1037. The doctrine of res judicata prevents the repetitious litigation of that which is essentially the same dispute. Sweeney v. State, 704 N.E.2d 86, 94 (Ind.1998); Wagle v. Henry, 679 N.E.2d 1002, 1005 (Ind.Ct.App. 1997); Scott v. Scott, 668 N.E.2d 691, 699 (Ind.Ct.App.1996). Thus, a petitioner for post-conviction relief cannot escape the effect of claim preclusion merely by using different language to phrase an issue and define an alleged error. Maxey v. State, 596 N.E.2d 908, 911 (Ind.Ct.App.1992). Also, issues that were available, but not presented, on direct appeal are forfeited on post-conviction review. Spranger v. State, 650 N.E.2d 1117, 1121 (Ind.1995); Lowery, 640 N.E.2d at 1036-37. But cf. Woods v. State, 701 N.E.2d 1208 (Ind.1998) (regarding claims of ineffective assistance of trial counsel).
Indiana Post-Conviction Rule 1(7) authorizes either the defendant-petitioner or the State to take an appeal. The State on appeal claims that the post-conviction court erred in concluding that the defendant established one of his claims sufficiently to be entitled to relief, and, thus, the judgment from which the State appeals is not a negative judgment. When an appeal after a non-jury trial does not challenge a negative judgment, the applicable standard is simply that prescribed by Indiana Trial Rule 52(A):
On appeal of claims tried by the court without a jury or with an advisory jury, at law or in equity, the court on appeal shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.
In reviewing a judgment granting post-conviction relief, our standard of review is governed by Indiana Trial Rule 52(A): "`We reverse only upon a showing of `clear error'that which leaves us with a definite and firm conviction that mistake has been made.'" State v. Van Cleave, 674 N.E.2d 1293, 1295 (Ind.1996) (quoting Spranger, 650 N.E.2d at 1119), reh'g granted in part, 681 N.E.2d 181 (Ind.1997), cert. denied, ___ U.S. ___, 118 S.Ct. 1060, 140 L.Ed.2d 121 (1998). Because this "clearly erroneous" standard is a review for sufficiency *169 of evidence, we neither reweigh the evidence nor determine the credibility of witnesses but consider only the evidence that supports the judgment and the reasonable inferences to be drawn from that evidence. Estate of Reasor v. Putnam County, 635 N.E.2d 153, 158 (Ind.1994); Chidester v. City of Hobart, 631 N.E.2d 908, 910 (Ind.1994); Indianapolis Convention & Visitors Ass'n., Inc. v. Indianapolis Newspapers, Inc., 577 N.E.2d 208, 211 (Ind.1991). When a "clearly erroneous" judgment results from application of the wrong legal standard to properly found facts, we do not defer to the trial court. Van Cleave, 674 N.E.2d at 1296. Also, we are not bound by the trial court's characterization of its results as "findings of fact" or "conclusions of law"; instead, we will look past these labels to the substance of the judgment and review a legal conclusion as such even if the judgment wrongly classifies it as a finding of fact. Id. (citing Indiana State Bd. of Public Welfare v. Tioga Pines Living Ctr., Inc., 575 N.E.2d 303, 306 & n. 1 (Ind.Ct.App.1991)).
The defendant, on the other hand, to the extent that he is appealing from a denial of relief, is appealing from a negative judgment. The standard of review in appeals from post-conviction negative judgments is well established: the defendant must establish that the evidence, as a whole, unmistakably and unerringly points to a conclusion contrary to the post-conviction court's decision. Spranger, 650 N.E.2d at 1119. The reviewing court accepts the trial court's findings of fact unless "clearly erroneous," T.R. 52(A), but does not defer to the trial court's conclusions of law, Van Cleave, 674 N.E.2d at 1295-96. The reviewing court examines only the probative evidence and reasonable inferences that support the post-conviction court's determination and does not reweigh the evidence or judge the credibility of the witnesses. Butler v. State, 658 N.E.2d 72, 75 (Ind.1995); Lowery, 640 N.E.2d at 1037.
In summarizing the difference between these two standards of review, we have indicated that these standards direct the inquiry of appellate tribunals into trial court decisions: "In one, the inquiry is essentially whether there is any way the trial court could have reached its decision. In the other, it is whether there is no way the court could have reached its decision." Spranger, 650 N.E.2d at 1120.

A. The State's Appeal
The State challenges the post-conviction court's partial grant of the defendant's petition for post-conviction relief. The State specifically argues that the court committed clear error when it concluded that the prosecutor engaged in a pattern of misconduct that placed the defendant in grave peril and that the defendant's appellate counsel was ineffective for failing to raise a claim regarding the pattern of misconduct. The State grounds its argument primarily on two bases: (1) that the defendant was barred by res judicata from raising a claim of prosecutorial misconduct; and (2) that the defendant was not deprived of the effective assistance of appellate counsel.
The post-conviction court did not apply the doctrine of res judicata. It stated: "This is not the same claim that was made on direct appeal and, therefore, consideration of this claim is not barred by prior adjudication." P.C.R. Record at 1000. The post-conviction court believed that our opinion on direct appeal merely reviewed the alleged acts of misconduct in isolation and that we failed to "set forth an analysis of the totality of the circumstances." P.C.R. Record at 1000. Proceeding to address the claim presented by the defendant, the post-conviction court concluded that a pattern of prosecutorial misconduct existed that culminated in grave peril to the defendant during the penalty phase of the trial.
Arguing in support of the post-conviction court's conclusion on this issue, the defendant asserts that our review on direct appeal focused on the penalty phase closing argument and argues that the *170 prosecutorial misconduct, which he contends occurred throughout the entire prosecution of the case, constituted a pattern of misconduct and represented a deliberate attempt improperly to prejudice him. The defendant argues that his appellate counsel did not present to this Court on direct appeal the specific claim that the egregious pattern of prosecutorial misconduct constituted a deliberate attempt to prejudice the defendant.
Upon inspection of the proceedings on direct appeal, we note that the first claim the defendant presented in his appellant's brief was his claim that the trial court erred in denying the defendant's motion to dismiss the death penalty as a result of "intentional, blatant and prejudicial prosecutorial misconduct." P.C.R. Record at 2694. On direct appeal, the defendant challenged the prosecutor's conduct throughout the trial, and his brief focused upon the prosecutor's conduct during the penalty phase. The defendant specifically argued that "[t]he prosecutor committed numerous acts of misconduct throughout the penalty phase" and that this "misconduct placed [the defendant] in such peril that the judge was required to dismiss the State's request for the death penalty." P.C.R. Record at 2694. Quoting the analysis that this Court has applied to claims of prosecutorial misconduct in Maldonado v. State, 265 Ind. 492, 355 N.E.2d 843, 848 (1976), the defendant's direct appeal brief continued:
1. The Court first determines that the prosecutor in fact engaged in misconduct. This determination is made by reference to the case law and the disciplinary rules of the Code of Professional Responsibility as adopted in this State. [citation]
2. The Court then considers whether the misconduct, under all circumstances, "placed [the defendant] in a position of grave peril to which he should not have been subjected." [citation] The "grave peril" standard does not require the Court to find that the misconduct determined the outcome of the trial. [citation]
3. Whether the misconduct results in subjecting the defendant to "grave peril" is determined by the probable persuasive effect of the misconduct on the jury's decision, not by the degree of impropriety of the conduct. [citation]
4. Even if an isolated instance of misconduct does not establish grave peril, if repeated instances evidence a deliberate attempt to improperly prejudice the defendant, a reversal may still result. [citation]
P.C.R. Record at 2694-95 (emphasis added). The defendant also argued in his brief on direct appeal:
Clearly, [the defendant] was placed in grave peril by the prosecutor's many acts of misconduct. . . . Any one of these acts of misconduct was sufficient to place [the defendant] in grave peril. The acts of the prosecutor were blatant, intentional and manifestly improper. Certainly these numerous acts of misconduct individually and in concert required that the judge dismiss the death penalty. . . .
P.C.R. Record at 2702 (emphasis added). The defendant summarized his argument on this claim as follows:
The prosecutor committed numerous acts of misconduct including telling the jury that they were not permitted to hear about the victims and showing them inadmissible photographs, telling the jury they should not consider the [defendant's] mitigation evidence and disparaging the [defendant's] defense counsel and witnesses. Although the [defendant] submits that the grave peril standard for prosecutorial misconduct should not be applied in a capital sentencing procedure, the misconduct was such that the [defendant] was placed in grave peril by the prosecutor's many acts of misconduct.
P.C.R. Record at 2688. The defendant's second claim on direct appeal was that the prosecutor presented perjured testimony *171 or failed to provide requested discovery. The defendant's third claim was that the prosecutor engaged in intentional misconduct by improperly placing excluded victim impact evidence before the jury.
In our opinion on direct appeal, Justice DeBruler, writing for a unanimous court,[5] carefully considered the defendant's claim that the prosecutor engaged in numerous acts of misconduct. See Holmes, 671 N.E.2d at 846-49. Our opinion analyzed the conduct of the prosecutor during the jury summation at the penalty phase, the responses of defense counsel, the motions filed by defense counsel, the rulings of and admonishments by the trial court, and the overall character of the jury summation. Id. at 846-47. This Court determined that the prosecutor engaged in misconduct in three respects: "(1) disrespect shown the court and its rulings favoring the defense, (2) personal attack upon the integrity of opposing counsel, and (3) attempts to persuade the jury with evidence which had been ruled inadmissible by the trial court, and the mention of which had been expressly forbidden by court order." Id. at 847. The Court determined, however, that "the misconduct did not place [the defendant] and his right to fairness in the jury recommendation process in grave peril." Id. The Court also concluded:
The probable persuasive effect of the misconduct upon the jury deliberations upon its penalty recommendation, in favor of life or in favor of death, under all the circumstances, was minimal. The misconduct did not result in grave peril and the motion for mistrial and the motion to dismiss were properly overruled.
Id. The Court also rejected the defendant's claims regarding the State's alleged use of perjured or undisclosed evidence and regarding the placing of victim impact evidence before the jury. Id. at 848-49.
We find that this Court on direct appeal thoroughly considered and decided the defendant's claim of prosecutorial misconduct. The defendant's claim in his post-conviction petition, although recharacterizing some of the issues, was essentially the same dispute as raised on direct appeal. The doctrine of res judicata exists to bring finality to claims that have been considered and decided and to prevent unnecessary protraction of judicial administration. We hold that the doctrine applies here and that the defendant should not have been permitted to relitigate this claim. We hold that the post-conviction court erred as a matter of law in failing to apply res judicata to bar this claim.[6]

B. The Defendant's Appeal
On cross-appeal, the defendant seeks our review of the following claims: (1) his sentence is unfair and unreliable because of insufficiently developed and unpresented information; (2) the death sentence is not appropriate because of unpresented evidence regarding the defendant's accomplice; (3) the death sentence is unreliable because of serious inaccuracies in the sentencing order; and (4) his trial and resulting sentence are illegal because there were no valid charges against him. We observe that the role of this Court is not to conduct a de novo review and adjudicate the merits of these claims but rather to review the judgment of the post-conviction court. We further note that the first three of the above enumerated claims do not constitute independent claims cognizable in post-conviction proceedings. Claims that a sentence is unfair, unreliable, or inappropriate are not, in and of themselves, proper for post-conviction review, but may be presented as argument to support contentions that a defendant was deprived of effective assistance of *172 counsel. We will consider them in this context and now restate them as the following claims of ineffective assistance of trial counsel: (1) because trial counsel insufficiently developed and presented information, the defendant's sentence is unfair and unreliable; (2) because trial counsel failed to present evidence regarding the defendant's accomplice, the death sentence is not appropriate; and (3) the sentencing order contains inaccuracies that trial counsel could have prevented or corrected.

1. Effective Assistance of Counsel
A defendant claiming a violation of the right to effective assistance of counsel must establish the two components set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Williams v. Taylor, ___ U.S. ___, ___, 120 S.Ct. 1495, 1511-12, 146 L.Ed.2d 389, 416-17 (2000). First, the defendant must show that counsel's performance was deficient. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. This requires showing that counsel's representation fell below an objective standard of reasonableness, id. at 688, 104 S.Ct. at 2064, 80 L.Ed.2d at 693, and that counsel made errors so serious that counsel was not functioning as "counsel" guaranteed the defendant by the Sixth Amendment, id. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. Second, the defendant must show that the deficient performance prejudiced the defense. Id. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Id. To establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would be different. Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
Counsel is afforded considerable discretion in choosing strategy and tactics, and we will accord that decision deference. Id. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694-95. A strong presumption arises that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. The Strickland Court recognized that even the finest, most experienced criminal defense attorneys may not agree on the ideal strategy or the most effective way to represent a client. Id. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 695. Furthermore, isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective. Bieghler v. State, 690 N.E.2d 188, 199 (Ind.1997); Davis v. State, 598 N.E.2d 1041, 1051 (Ind. 1992); Ingram v. State, 508 N.E.2d 805, 808 (Ind.1987). However, in order to make a reasonable tactical decision, counsel must have adequately investigated the client's case because "strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2066, 80 L.Ed.2d at 695.
The State argues that the defendant's claims of ineffective assistance are barred for failing to raise them on direct appeal. However, this Court has recently clarified the law regarding claims of ineffective assistance of counsel, establishing that a defendant may raise a claim of ineffective assistance of trial counsel for the first time in a post-conviction proceeding. See Woods, 701 N.E.2d 1208. In Woods, we stated that "a Sixth Amendment claim of ineffective assistance of trial counsel, if not raised on direct appeal, may be presented in post-conviction proceedings." Id. at 1220. The defendant did not raise a claim of ineffective assistance of counsel on direct appeal.
a. Insufficiently Developed Information
The first allegation of ineffective assistance of counsel is that the defendant's *173 trial counsel failed to sufficiently develop and present evidence of his mental illness. He asserted on post-conviction that his trial counsel failed to present evidence that he suffered from impairments that precluded him from planning and carrying out crimes like those for which he was convicted. On post-conviction, the defendant presented the testimony of a licensed psychologist who opined that the defendant was neither psychotic nor retarded; that he suffered from a variety of neuro-cognitive disorders and specifically from a verbal learning disability, a non-verbal visual learning disability, and Attention Deficit Hyperactivity Disorder (ADHD); that he was forlorn and sad, but not a person with active aggression; that he suffered from an extreme mental or emotional disturbance at the time of the offense; and that he did not possess the cognitive apparatus to understand what was occurring and how to interpret it.
The post-conviction court found that evidence of the defendant's mental health was presented to the trial court by several mental health experts who indicated that the defendant was incapable of assessing a situation and acting according to a plan and that this testimony was similar to that presented on post-conviction, providing opinions that the defendant suffered from learning disabilities and mental impairments that precluded him from planning and carrying out the crimes. The substance of the defendant's claim was presented and available for consideration at trial. The post-conviction court determined that counsel did develop and present evidence regarding the defendant's mental ability to plan and carry out this crime. The post-conviction court found that trial counsel's performance was not deficient.[7]
b. Unpresented Evidence
The second allegation of ineffective assistance of counsel is that the defendant's trial counsel failed to present evidence regarding his accomplice.[8] In his petition for post-conviction relief, the defendant argued that a death sentence was inappropriate because his accomplice was more culpable, but received a sentence less than the death sentence. The defendant contended that his trial counsel provided ineffective assistance in failing to present evidence of his accomplice's violent, aggressive nature and criminal history.
In considering the defendant's claim, the post-conviction court found that the accomplice had a violent nature, that the accomplice had a more extensive criminal history than the defendant, and that these facts were available and should have been known by counsel but were not presented at trial. However, the post-conviction court concluded that the accomplice's prior misconduct was not relevant to the circumstances of the crime and the character of this defendant. It also concluded that trial counsel presented essentially all of the same background evidence as was presented on post-conviction review and that *174 counsel's assistance cannot be faulted as objectively unreasonable for failing to add more of the same. The court found that counsel's performance was not deficient.
c. Sentencing Order Inaccuracies
The defendant contends that the post-conviction court erred in denying his claim that the death sentence is unreliable because the sentencing order contains inaccuracies that trial counsel could have prevented or corrected.
The post-conviction court determined that the defendant's claim was barred by res judicata but nevertheless concluded that the trial evidence adequately supported the sentencing court's conclusions regarding the defendant's motive and opportunity to commit the crimes and his participation in the crimes. To the extent that the defendant's post-conviction claim challenges the content and sufficiency of the trial court's sentencing order, we agree that res judicata is a bar. Our opinion on direct appeal extensively discussed the trial court's sentencing evaluation and order. Among the various aspects addressed were the trial court's finding and weighing of aggravating and mitigating circumstances, its consideration of the defendant's intellectual functioning as a mitigator, its consideration of the sentence received by the accomplice, and the structure of the sentencing statement itself. Holmes, 671 N.E.2d at 849-53.
Considering the defendant's claim that trial counsel provided ineffective assistance for failing to present a more favorable picture of the defendant's mental capacity, character, and behavior by developing and presenting additional evidence regarding the defendant's family history, educational background, and mental health and abilities, the post-conviction court found that defendant's trial counsel developed and presented evidence regarding the defendant's mental health and his inability to plan and carry out the crimes, including the testimony of several mental health professionals, family members, friends, teachers, a school administrator, and other witnesses. The post-conviction court determined that trial counsel contested the testimony of a key witness and presented essentially all of the same background evidence at trial and sentencing as was presented on post-conviction review. The court concluded that trial counsel did not perform deficiently by not presenting cumulative evidence.
d. Conclusion Regarding Effective Assistance of Counsel
As noted above, to prevail on his claim of ineffective assistance of trial counsel, the defendant had the burden to prove to the post-conviction court that his counsel's performance was substandard and that the deficient performance prejudiced the defense. As to each of the specified claims of attorney deficiency, the post-conviction court made findings and conclusions contrary to the defendant's claim. In this appeal from the judgment of the post-conviction court denying relief, the defendant has not demonstrated that the evidence as a whole leads unmistakably and unerringly to a conclusion contrary to the decision of the post-conviction court.

2. Absence of Charges
In his cross-appeal, the defendant also contends that the post-conviction court erred in denying his claim that his trial, conviction, and sentence were illegal because charges were never properly brought against him. He argues that the 1989 charges that resulted in his trial, conviction, and sentence were dismissed in 1991 and later improperly reinstated without being formally refiled. The post-conviction court found the claim to be without merit.
The post-conviction court found that the defendant's trial counsel neither saw nor were served with a motion to dismiss and that, in major felony cases, such motions are usually submitted in writing. The post-conviction court determined that, although the deputy prosecutor *175 at some point wanted to dismiss the charges filed in 1989, they were never dismissed and that the charges filed in the 1992 case were duplicative of the 1989 charges that were still pending before the trial court. The post-conviction court concluded that the defendant failed to show that no valid charges were brought against him.
The defendant derives this claim from a pleading entitled Notice of Refiling filed on August 5, 1992, when the State refiled these criminal charges in cause number 49G05-9208-CF-101477, a separate cause. The Notice of Refiling recited that the cause had been charged in this present proceeding, cause number 49G05-8911-CF-131401, and dismissed on November 16, 1991. The charges refiled in 1992 were dismissed on the State's motion two days later. And, on that same day, the State also filed in the present cause a Motion to Withdraw Motion to Dismiss. The defendant cannot establish either the filing or the granting of any motion to dismiss the present cause, and we find none. Furthermore, the record and filings at and around the time of the purported motion to dismiss and dismissal of charges demonstrate that both the defendant and the State were actively involved in ongoing discovery without any indication that either the parties or the trial court intended or understood that the charges were being dismissed.
The defendant has not demonstrated that the evidence unmistakably and unerringly points to a conclusion contrary to the decision of the post-conviction court.

Conclusion
We reverse and vacate that portion of the post-conviction court's order setting aside the death sentence and ordering a new penalty phase and sentencing hearing, and we affirm the remaining portion of the order denying relief. The defendant's petition for post-conviction relief is denied.
SHEPARD, C.J., and SULLIVAN and BOEHM, JJ., concur. RUCKER, J., concurs in result.
NOTES
[1]  IND.CODE § 35-42-1-1.
[2]  IND.CODE § 35-41-5-1; IND.CODE § 35-42-1-1.
[3]  IND.CODE § 35-42-5-1.
[4]  IND.CODE § 35-41-5-2; IND.CODE § 35-42-5-1.
[5]  Justice Selby concurred in the majority opinion but wrote a separate concurring opinion addressing an unrelated issue.
[6]  Because we hold that this claim was well-presented and addressed on direct appeal, the claim of ineffective assistance of appellate counsel is wholly without merit and does not supersede the application of the doctrine of res judicata.
[7]  The U.S. Supreme Court recently revisited the process for determining whether a defendant has been denied the right to counsel guaranteed by the Sixth Amendment. Williams, ___ U.S. ___, 120 S.Ct. 1495, 146 L.Ed.2d 389. In Williams, the Court instructed that Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993), should not be read to modify the Strickland test by requiring "a separate inquiry into fundamental fairness when [the defendant] is able to show that his lawyer was ineffective and that his ineffectiveness probably affected the outcome of the proceeding." Williams, ___ U.S. at ___, 120 S.Ct. at 1513, 146 L.Ed.2d at 418. The post-conviction court, in reciting the two-pronged standard, cited Lockhart v. Fretwell. P.C.R. Record at 959. However, the prejudice prong was not determinative in the post-conviction court's ruling because the court found that trial counsel's performance was not deficient. Because the post-conviction court found no deficient performance, we need not determine whether the court applied the standard in a way contrary to the instruction in Williams.
[8]  Throughout his brief, the defendant refers to Michael Vance as his co-defendant. However, the defendant and Vance were tried separately.


USCA1 Opinion

                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

        No. 97-1829

                              RANDOLPH E. GREEN, ET AL.,

                               Plaintiffs, Appellants,

                                          v.

                               CITY OF BOSTON, ET AL.,

                                Defendants, Appellees.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                  [Hon. George A. O'Toole, Jr., U.S. District Judge]
                                                ___________________

                                 ____________________

                                        Before

                                Torruella, Chief Judge,
                                           ___________
                           Stahl and Lynch, Circuit Judges.
                                            ______________

                                 ____________________

            Randolph E. Green on brief pro se.
            _________________
            Merita  A.  Hopkins,  Corporation  Counsel,  and  Gerald  Fabiano,
            ___________________                               _______________
        Assistant Corporation Counsel, City of Boston Law Department, on brief
        for appellees.

                                 ____________________

                                  December 19, 1997
                                 ____________________

                 Per Curiam.   Plaintiffs  appeal from  a district  court
                 __________

            judgment dismissing their civil rights  complaint for failure

            to state  a claim.   Their principal contention on  appeal is

            that the  district court erred  in setting aside a  notice of

            default, which  had been  entered when  defendants failed  to

            file a timely response to the amended complaint.  The setting

            aside  of an  entry of default  is subject to  a "good cause"

            standard, Fed. R. Civ. P. 55(c), is reviewable on appeal only

            for abuse of  discretion, and is not to  be disturbed "unless

            the  district court's decision is clearly wrong," McKinnon v.
                                                              ________

            Kwong Wah Restaurant, 83 F.3d 498, 502  (1st Cir. 1996).  The
            ____________________

            court's action here cannot possibly be so characterized.

                 The "good  cause" standard is  a "mutable" one,  Coon v.
                                                                  ____

            Grenier, 867 F.2d  73, 76 (1st Cir. 1989),  involving a case-
            _______

            specific  determination  not  amenable   to  any  "mechanical

            formula,"  General  Contracting &  Trading Co.  v. Interpole,
                       ___________________________________     __________

            Inc., 899 F.2d 109, 112 (1st Cir. 1990).  We have nonetheless
            ____

            identified  some   general  guidelines  to   assist  in   its

            application.  See, e.g., McKinnon, 83 F.3d at 503; Interpole,
                          ___  ____  ________                  _________

            899  F.2d  at 112;  Coon,  867 F.2d  at  76.   These criteria
                                ____

            overwhelmingly  predominate  in   defendants'  favor.     For

            example,  there  has  been  no  suggestion  but  that  simple

            inadvertence was  involved here.   Plaintiffs  have not  been

            prejudiced  in  any relevant  sense.    See,  e.g.,  FDIC  v.
                                                    ___   ____   ____

            Francisco Inv. Corp., 873 F.2d 474, 479 (1st Cir. 1989).  The
            ____________________

                                         -2-

            defenses mounted  by defendants  have proven to  be not  only

            potentially but actually  meritorious.  And defendants  acted

            promptly  upon  learning  of their  oversight.    Given these

            circumstances,  the  district  court  acted  well  within its

            discretion in setting aside the entry of default.

                 Plaintiffs'  remaining  contention  is  that  the  court

            discriminated against them in failing to address two of their

            offerings:  their motion  to "vacate"  defendants' motion  to

            dismiss, and  their motion for  "order of judgment."   To the

            contrary,  the court necessarily  if implicitly  denied those

            requests in the course of granting the motion to dismiss.

                 As plaintiffs have advanced no specific challenge to the

            holding that their amended complaint failed to state a claim,

            it  suffices  to  note  that  we  find  the district  court's

            reasoning in this regard unexceptionable.

                 Affirmed.
                 _________

                                         -3-


330 F.3d 67
UNITED STATES of America, Appellee,v.Manuel GERONIMO, Defendant, Appellant.
No. 01-1668.
United States Court of Appeals, First Circuit.
Heard December 2, 2002.
Decided June 3, 2003.
Rehearing and Suggestion for Rehearing En Banc Denied July 3, 2003.

Janet H. Pumphrey, with whom Manuel Geronimo, pro se, was on brief for appellant.
Robert L. Peabody, Assistant United States attorney, with whom Michael J. Sullivan, United States attorney, was on brief for appellee.
Before LYNCH, LIPEZ, and HOWARD, Circuit Judges.
LIPEZ, Circuit Judge.

1
On January 12, 2000, a grand jury indicted defendant Manuel Geronimo on one count of conspiracy to import "ecstacy" (3,4 Methylenedioxymethamphetamine) and one count of aiding and abetting the importation of ecstacy. After a six-day trial, the jury acquitted Geronimo of the conspiracy charge, but found him guilty of aiding and abetting. See 21 U.S.C. § 952(a) (2003). The district court subsequently sentenced the defendant to a 78-month prison term. On appeal, Geronimo challenges the conviction on three grounds: 1) the government failed to prove the element of scienter required to convict on a drug importation charge, 2) the district court inadequately instructed the jury on aiding and abetting; and 3) the district court erroneously applied Federal Rule of Evidence 801(d)(2)(E) to admit the out-of-court statements of co-conspirators. Because, as the defendant concedes, these arguments were not properly preserved below, all three claims are subject to plain error review. After careful consideration, we affirm the defendant's conviction.

I.

2
The material facts are generally undisputed. On December 2, 1999, United States customs inspectors intercepted airline passenger Disenia Gonzalez as she deplaned at Logan International Airport in Boston, Massachusetts. Airline manifests indicated that Gonzalez was a citizen of the Netherlands and that her flight to Boston had originated in Brussels, Belgium. In the experience of the customs officials at Logan Airport, Gonzalez's citizenship and route were typical of couriers attempting to smuggle drugs into the country. Their suspicions aroused, customs officials escorted Gonzalez to the customs examination area, where she was interviewed and searched. Gonzalez was wearing several layers of clothing concealing a bulky vest with eight velcro pockets. In each pocket of the vest agents discovered a cylindrical tube filled with white pills. In total, Gonzalez was carrying 10,436 pills weighing a total of 2,975 grams. Chemical tests conducted on the pills confirmed that they were ecstacy. During the search, agents also uncovered a Customs Declaration Form listing Gonzalez's destination as "Hotel Deytin in Saugus," and retrieved a slip of paper with an international phone number from Gonzalez's purse.

3
After Gonzalez was arrested and charged with importation of ecstacy and conspiracy to import ecstacy, she agreed to cooperate with the government. Gonzalez worked with Special Agent Tim McGrath, the customs official leading the investigation, to set up a "controlled delivery" of the ecstacy pills. After determining that no "Hotel Deytin" existed in Saugus, Massachusetts, he brought Gonzalez to the Days Inn in Saugus, the location that in his judgment most closely resembled (in name, location and type) the rendezvous point specified in Gonzalez's instructions. From the Days Inn, Gonzalez placed a call to the phone number earlier found in her personal effects, which belonged to an individual in Amsterdam named "Nilvio." She left a message on Nilvio's voice mail announcing her arrival and providing her current location. At 10:00 a.m. on December 3, an individual named Octavio Garcia arrived at the Days Inn and attempted to retrieve the drugs. Garcia was placed under arrest, and he too agreed to cooperate with the investigation.

4
Special Agent McGrath, with Garcia's help, arranged for a second controlled delivery. Over the next two hours, Garcia received nine telephone calls — three from Nilvio and six from the defendant. At 3:00 p.m., Geronimo arrived at the Days Inn to complete the transaction. After entering the hotel room, he placed $6,000 in cash on the bed and attempted to leave with a suitcase containing the ecstacy pills. This encounter, which was monitored and recorded by federal agents, was the source of some dispute at trial. The government argued that Geronimo, who was conversing with Garcia in Spanish, asked Garcia to carry the suitcase downstairs himself. The defense produced an interpreter who offered a different translation of the remarks in question. Neither party disputes that Geronimo ultimately picked up the suitcase and tried to leave the hotel room, at which point he was arrested.

5
In an effort to uncover the next link in the chain, Agent McGrath solicited from Geronimo the kind of cooperation he had received from Gonzalez and Garcia. Although Geronimo signed a waiver of his Miranda rights and initially appeared willing to cooperate, he requested a lawyer soon thereafter when Agent McGrath refused to promise the defendant that his cooperation would keep him out of prison. Geronimo ultimately failed to reach any plea agreement with prosecutors and his case went to trial.

6
At trial, the government elicited testimony from Gonzalez and Garcia that painted a more complete picture of the conspiracy. Gonzalez testified that Nilvio, a citizen of the Dominican Republic residing in Holland, originally supplied the ecstacy and offered to pay her $6,500 to smuggle the pills into the United States. Nilvio gave Gonzalez his phone number and informed her that a friend of his, "Machito," would meet her flight at Logan Airport. "Machito" turned out to be Octavio Garcia, who was also a citizen of the Dominican Republic and an acquaintance of Nilvio's from Amsterdam. Garcia testified that in December of 1999, he was residing in Florida on a travel visa when Nilvio contacted him offering $2,000 if he would fly to Boston, retrieve the ecstacy from Gonzalez, and arrange delivery of the pills to Geronimo. Nilvio provided Garcia with Geronimo's beeper and phone number; two cards with these handwritten phone numbers were ultimately recovered from Garcia's effects when the police placed him under arrest. At trial, Garcia related the substance of numerous phone conversations with Geronimo in which he conveyed his travel plans, confirmed his arrival in Boston, arranged a preliminary meeting at a restaurant in Lawrence, Massachusetts, and set up the final controlled delivery at the Days Inn.

7
The defense did not attempt to contradict the testimony of the two cooperating witnesses. Instead, they sought to portray Geronimo as a "dupe" who believed that he was picking up a delivery of vitamins as a favor for a local businessman. Specifically, Geronimo testified that in November 1999 he was approached by a man named José Ortiz, who described himself as an entrepreneur attempting to establish a business in Lawrence supplying vitamins and proteins to local gyms and health stores. According to the defendant, Ortiz informed him that he was planning to be out-of-town for the next several days and asked Geronimo whether he could pick up a shipment of vitamins that would be arriving in Lawrence the next day. The defendant agreed, and Ortiz gave him $6,000 in cash, a telephone number, and a nickname, "MDMA," to use when contacting Ortiz at that number. Geronimo testified that Ortiz did not offer to pay him for picking up the vitamins, but that he was nonetheless willing to do it as a favor in the hopes that Ortiz might consider hiring him to work for his Lawrence business. Special Agent McGrath had earlier testified that Geronimo, before requesting a lawyer, confessed to knowing that ecstacy was the subject matter of the transaction. Geronimo concluded his direct examination by vigorously disputing that he made any such admission.

8
At the close of the evidence, the judge provided the following instruction to the jury on the aiding and abetting charge:

9
To `aid and abet' means to intentionally help someone else commit a crime. To establish aiding and abetting, the government must prove beyond a reasonable doubt (1) that another person or persons committed the crime charged; and, (2) that the defendant willfully associated himself in some way with the crime and participated in it as he would in something that he wished to bring about. That means that the government must prove that the defendant consciously shared the other person's knowledge of the underlying criminal act and intended to help him or her carry it out. He need not perform the underlying criminal act, be present when it's performed, or be aware of the details of its execution to be guilty of aiding and abetting. A general suspicion that an unlawful act may occur or that something criminal is happening is not enough. Mere presence at the scene of a crime and knowledge that a crime is being committed are not sufficient to establish aiding and abetting.

10
Neither party objected to this instruction, and the jury retired to deliberate the case. After deliberating for approximately half a day, the jury submitted three questions to the court:

11
(1) Under "importation," we have the phrase "caused to be brought." To be considered part of the conspiracy... must the defendant know that the conspiracy involved importation?

12
(2) If the defendant knew he was picking up an illegal substance, but did not know [its] origin, can the defendant still be considered part of the conspiracy?

13
(3) The verdict sheet for Count 2 says "illegal importation" and not aiding and abetting. Why?

14
Responding to the first question, the court informed the jury that the defendant must have known that the conspiracy involved importation to be found guilty on the conspiracy charge. The court then gave a qualified affirmative response to the second question:

15
The answer to that question is also yes with this caveat: The defendant, as I explained, as part of a conspiracy need not know all of its details, but he must know its general objective. The defendant, to be part of a conspiracy under your second question, would not have to know that the drugs originated in Holland but would have to know that they originated somewhere outside of the United States and, consistent with the purpose of the conspiracy, were being, thus, brought into the United States.

16
In response to the third question, the judge discussed the legal significance of aiding and abetting, explaining that a person with knowledge of a crime and the purpose to carry it out is just as culpable under the law as the principal actor. Later that day the jury concluded its deliberations, finding Geronimo not guilty of the conspiracy charge, but convicting on the aiding and abetting count. The district court entered judgment on the verdict, and Geronimo filed a timely appeal.

II.
A. Scienter

17
The jury's questions to the court suggested that Geronimo's knowledge of the importation element of the drug conspiracy was the weak link in the government's case. Having overlooked the knowledge of importation element at trial, Geronimo belatedly attempts to litigate the issue on appeal, claiming that the government failed to produce evidence that Geronimo knew the ecstacy had originated outside the United States. While Geronimo contested the sufficiency of the evidence in his Rule 29 motion for acquittal after the government's case in chief, the record does not indicate that he specifically challenged the government's proof of scienter. Moreover, the defendant failed to renew the Rule 29 motion at the close of his own case. "Absent a renewal of the motion for acquittal after presenting the case for the defense, the motion for acquittal is considered waived. Hence, in order to prevail on a challenge to the sufficiency of the evidence, the defendants must then demonstrate clear and gross injustice." United States v. Stein, 233 F.3d 6, 20 (1st Cir.2000).

18
The essence of the defendant's sufficiency of the evidence claim is that the government failed to demonstrate Geronimo's intent to further a drug importation scheme: "There was no evidence that Geronimo associated himself with importation, no evidence that he knew anything about the importation scheme, no evidence that he participated in the importation as something he wished to bring about, and no evidence that he took any action to make the importation succeed." The government argues in response that there is no scienter requirement regarding the fact of importation itself:

19
Given that the government does not need to prove that the principal knew he was importing drugs into the country, it should not need to prove that "element" for an aider and abettor. Rather, to establish a defendant's guilt under an aider and abettor theory, this Court's case law would seem to require that the government prove only that the principal imported a drug, and that the defendant knowingly aided in that importation, even if he did not know that the drugs had come from outside the country.

20
This characterization of the law ignores the plain language of the drug importation statute. 21 U.S.C. § 952 provides that, except to the extent that the Attorney General of the United States may permit for medical, scientific, or other legitimate purposes, "[i]t shall be unlawful... to import into the United States from any place outside thereof, any controlled substance." 21 U.S.C. § 952(a). Significantly, section 960(a)(1) specifies that "[a]ny person who ... contrary to section 952, 953, or 957 of this title, knowingly or intentionally imports or exports a controlled substance ... shall be punished as provided in subsection (b) of this section." 21 U.S.C. § 960(a)(1) (emphasis added). Accordingly, to convict a principal actor of importing a controlled substance, the prosecution must prove that the accused knew the drugs were imported.1 See United States v. Bolinger, 796 F.2d 1394, 1405, as modified at 837 F.2d 436 (11th Cir.1986), cert. denied, 486 U.S. 1009, 108 S.Ct. 1737, 100 L.Ed.2d 200 (1988).

21
Our decision in United States v. Mejia-Lozano, 829 F.2d 268 (1st Cir.1987), relied upon by the government, is not to the contrary. In that case, the defendant boarded an airplane in Bogota, Colombia bound for Geneva, Switzerland. During a scheduled stop in Puerto Rico, customs inspectors searched the aircraft and discovered two suitcases belonging to defendant containing fourteen pounds of cocaine. Mejia appealed her conviction for importation, asserting that the government failed to prove that she knew she would be coming to the United States. She did not press the claim that Geronimo advances here — a lack of awareness that the drugs in her possession originated outside the United States. Indeed, as the courier transporting the drugs, she was in no position to disavow knowledge of their source. Accordingly, the language and holding of Mejia-Lozano addresses an alleged gap in the defendant's knowledge of the destination of the drugs, not their foreign origin.

22
Geronimo stands in a very different position than Mejia. Because he did not bring the drugs into the United States himself, he can plausibly argue that he was unaware of their foreign origin. Having established that a principal actor must have knowledge of importation under sections 952(a) and 960(a)(1), it follows that the element of scienter similarly applies to the crime of aiding and abetting importation: "Aiding and abetting requires the government to show that a defendant participated in the venture and sought by his actions to make it succeed. This burden is fulfilled by a showing that the defendant consciously shared the principal's knowledge of the underlying criminal act, and intended to help the principal." United States v. Hernandez, 218 F.3d 58, 65 (1st Cir.2000) (internal quotation marks and citation omitted). If the "underlying criminal act" is importation of a controlled substance, the accused must have "consciously shared the principal's knowledge" of the importation to be found guilty of aiding and abetting.

23
Nonetheless, we conclude that the jury had a sufficient evidentiary basis to find that Geronimo was aware that the drugs originated overseas. A Sprint PCS business card found in Geronimo's wallet contained an Amsterdam phone number and the chemical name for ecstacy ("MDMA") scrawled on one side. Octavio Garcia testified that he informed Geronimo on numerous occasions over a two-day period that he was waiting for Disenia Gonzalez to arrive in Boston so that he could coordinate delivery of the drugs. The defendant himself testified that he knew the "vitamins" were arriving as a shipment, and that the courier transporting them was traveling through Logan Airport. Finally, the record suggests that Nilvio (who was located in Amsterdam) and Geronimo were at least casually acquainted. Nilvio referred to Geronimo as "Miguelin," a nickname primarily used by Geronimo's immediate family. Geronimo also admitted to knowing who Nilvio was, and confirmed that Nilvio had given Geronimo's cell phone and pager numbers to Octavio Garcia. While the jurors were not compelled to credit all of this evidence, they were entitled to infer from these facts that Geronimo knew the drugs had originated overseas. Accordingly, we find no "clear and gross injustice," Stein, 233 F.3d at 20, in the district court's decision to enter judgment on the conviction.

B. The Aiding and Abetting Instructions

24
On appeal, Geronimo alleges error in both the initial aiding and abetting instruction, see supra, and the judge's clarification of the instruction in response to the jury's third question. We excerpt the reinstruction below, emphasizing the particular language challenged by the defendant:

25
Aiding and abetting is not a crime in and of itself or a separate crime. Aiding and abetting is a principle under the law whereby a person who places himself in a position knowing that another is to commit a crime, to assist the commission of that crime if necessary, if called upon, is treated by the law as if he were the principal actor. Even though he may never lift a hand, but if he stands by with the knowledge and the contingent purpose to assist the accomplishment of the crime should it be necessary, the law draws no distinction between what we would formally call the "principal" and the aider and abettor. With every federal crime, aiding and abetting makes you just as guilty as if you had committed the crime yourself.

26
(emphasis added). Geronimo now argues for the first time on appeal that both the original instruction and the re-instruction were flawed because they directed the jury to review the defendant's conduct with reference to a generic "crime," rather than denoting the "principal offense" charged by the government (in this case, the importation of a controlled substance). By contrast, the defendant points us to the Eighth Circuit's Pattern Jury Instruction for Aiding and Abetting:

27
A person may [also] be found guilty of [insert principal offense] even if [he][she] personally did not do every act constituting the offense charged, if [he][she] aided and abetted the commission of [describe the principal offense]. In order to have aided and abetted the commission of a crime a person must... (1) have known [describe principal offense] was being committed or going to be committed; [and] (2) have knowingly acted in some way for the purpose of [causing][encouraging][aiding] the commission of [describe principal offense][and] (3) have [intended][known][insert mental state required by principal offense]. For you to find the defendant guilty of [insert principal offense] by reason of aiding and abetting, the government must prove beyond a reasonable doubt that all of the essential elements of [describe principal offense] were committed by some person or persons and that the defendant aided and abetted the commission of that crime.

28
(emphasis added).

29
Geronimo contends that the district court's failure to emphasize the specific principal offense in both the original instruction and the re-instruction was particularly prejudicial under the circumstances of this case. He reasons that the government chose not to charge Geronimo with possession of a controlled substance — an offense readily apparent from the record — but rather with importation. The government's decision to prosecute Geronimo for this principal offense obliged them to prove beyond a reasonable doubt that Geronimo assisted the commission of importation specifically. In his view, the court's failure to specify the nature of the principal offense in the aiding and abetting instructions may have misled the jury into convicting him for assisting the commission of any crime, including possession. The defendant derives added force for his argument from the jury's questions to the court, as well as its ultimate decision to acquit on the conspiracy count. He asserts that

30
[i]t is clear from the jury's questions that they acquitted on the conspiracy to import count because they found that the Defendant did not know that the drugs were imported. And, the Court's inadequate re-instructions on aiding and abetting "a crime" caused them to convict the Defendant, not for importation, but for mere possession.

31
Under plain error review, "[t]he burden [ ] rests with appellant to establish that the error was `clear,' in the sense that it was `obvious,' that it affected `substantial rights,' and that failure to vacate the [] conviction would result in a `miscarriage of justice.'" United States v. Alzanki, 54 F.3d 994, 1003 (1st Cir.1995) (quoting United States v. Olano, 507 U.S. 725, 734-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). We acknowledge that it would be preferable for an aiding and abetting instruction to refer specifically to the principal offense in the fashion of the Eighth Circuit pattern instruction, rather than generically to "a crime." That said, we find no plain error in either of the court's instructions. The court's original instruction begins by referring to "the crime charged," establishing a context for the subsequent references to "crime." Indeed, the jury's third question to the judge reflected its understanding that importation was the relevant crime: "The verdict sheet for Count 2 says `illegal importation' and not aiding and abetting. Why?" The repeated references to "a crime" in the court's re-instruction obviously referred to the specific offense of "illegal importation," the crime denoted on the verdict form and the subject of the jury's original question. Thus, it appears unlikely that the jurors construed either the original aiding and abetting instruction or the re-instruction as providing license to convict for conduct that did not aid the crime of importation. As the government points out, the jury's split verdict might well indicate that it found insufficient evidence of an agreement to join the charged conspiracy, while still concluding that Geronimo was aware of the drugs' origin. In the end, we conclude that the district court's jury instruction did not give rise to plain error, and we decline to set aside Geronimo's conviction on this ground.

C. The Petrozziello Ruling

32
Geronimo contends on appeal that the district court erroneously admitted various out-of-court statements by alleged coconspirators Nilvio, Disenia Gonzalez, and Octavio Garcia. Federal Rule of Evidence 801(d)(2)(E) excludes from the category of hearsay "statement[s] by a coconspirator of a party during the course and in furtherance of the conspiracy." Fed.R.Evid. 801(d)(2)(E). As a predicate for admitting evidence under this rule, the trial court must conclude that "it is more likely than not that the declarant and the defendant were members of a conspiracy when the hearsay statement was made, and that the statement was in furtherance of the conspiracy." United States v. Petrozziello, 548 F.2d 20, 23 (1st Cir.1977). In our circuit, this determination is referred to as a Petrozziello ruling. The trial court is not required to decide the Petrozziello question prior to admitting hearsay statements under Rule 801(d)(2)(E), but may "admit the statement[s] provisionally, subject to its final Petrozziello determination at the close of all the evidence." United States v. Isabel, 945 F.2d 1193, 1199 n. 10 (1st Cir.1991). "Hence, to properly preserve an objection to a Petrozziello ruling, a defendant must ordinarily object both when the hearsay statements are provisionally admitted, and again at the close of all the evidence." United States v. Newton, 326 F.3d 253, 257 (1st Cir.2003).

33
We reiterate that the defense never objected at trial to the court's admission of particular coconspirator statements from Nilvio, Gonzalez, or Garcia. Indeed, the defense did not even prompt the court to issue a final Petrozziello ruling at the close of the evidence, but merely objected to the court's sua sponte Petrozziello determination:

34
In terms of the Petrozziello rulings, I think, given the link that has been established between Disenia Gonzalez and Octavio Garcia, the transfer of the drugs from Ms. Gonzalez to Mr. Garcia, the directions Mr. Garcia received from Nilvio to contact Manny by phone or by beeper, Mr. Garcia's testimony that the defendant met him by prearrangement at the restaurant in Lawrence, the Tipico, corroborated by the telephone records, followed by the defendant's appearance at the Days Inn to take delivery of the suitcase, establishes by a preponderance of the evidence the existence of the conspiracy and the defendant's participation in the conspiracy at all relevant times.

35
Even on appeal, Geronimo has failed to specify the particular hearsay statements that the district court erroneously admitted. Instead, he argues generally that "the co-conspirators' hearsay statements, including the many taped telephone conversations, should have been excluded."

36
Not surprisingly, the government urges us to treat Geronimo's Petrozziello argument as waived. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990) ("[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived."). While that approach is tempting, we assume arguendo that Geronimo properly preserved the Petrozziello claim below and adequately developed the argument on appeal. Under these circumstances, "[w]e review the trial court's determination that statements were coconspirator statements under the clear error standard." United States v. Marino, 277 F.3d 11, 25 (1st Cir.2002) (citing United States v. Mojica-Baez, 229 F.3d 292, 304 (1st Cir.2000)).

37
We discern no clear error in the district court's Petrozziello ruling. The defendant himself concedes that "there is clearly evidence of the existence of a conspiracy to import," and only questions the district court's finding by a preponderance of the evidence that Geronimo himself was a party to the conspiracy. The district court rested its decision in this regard on the numerous phone calls between Geronimo and other admitted members of the conspiracy, Octavio Garcia's testimony that he arranged a preliminary meeting with Geronimo at a restaurant in Lawrence, and Geronimo's attempt to accept delivery of the ecstacy. While the jury did not determine beyond a reasonable doubt that Geronimo was guilty of the conspiracy charge, the aforementioned facts certainly permitted the judge to conclude by a preponderance of the evidence that Geronimo had joined the conspiracy. Accordingly, we decline to reverse Geronimo's conviction on Petrozziello grounds.2

III.

38
Our close examination of the record reveals no basis for overturning the defendant's conviction. Accordingly, the judgment of the district court is affirmed.

Notes:

1
 The term "import" is defined in the statute as "any bringing in or introduction of [an] article into any area (whether or not such bringing in or introduction constitutes an importation within the meaning of the tariff laws of the United States)." 21 U.S.C. § 951(a)(1)

2
 On appeal, Geronimo has supplemented the brief filed by his attorney with a pro se submission alleging fatal deficiencies in the indictment, lack of subject matter jurisdiction,Brady violations, and violations of his Sixth Amendment right to assistance of counsel. These arguments are facially devoid of merit, and we reject them summarily.


802 P.2d 111 (1990)
STATE of Utah, Plaintiff and Appellee,
v.
Don Lavon ERICKSON, Defendant and Appellant.
No. 890125-CA.
Court of Appeals of Utah.
November 27, 1990.
D. Bruce Oliver (argued), Oliver & Parker, Salt Lake City, for defendant and appellant.
Herbert Wm. Gillespie, Duchesne County Atty., Rolan Uresk (argued), Machelle Fitzgerald, Deputy Duchesne County Attys., Roosevelt, for plaintiff and appellee.
Before GREENWOOD, BENCH and JACKSON, JJ.

MEMORANDUM DECISION
PER CURIAM:
This is an appeal from a conviction, following a jury trial, for Driving While Under the Influence of Alcohol. This appeal was scheduled for oral argument pursuant to Utah R.App.P. 31. The appeal raises three issues: (1) whether the original investigating officer had a reasonable articulable suspicion to justify the stop of defendant; (2) whether the original investigating officer had probable cause to arrest defendant *112 for driving under the influence; and (3) whether a second officer could continue the investigation without first advising the defendant of his rights pursuant to the fourth, fifth, and sixth amendments to the Constitution of the United States. Pursuant to Rule 31, this court affirms, without opinion, the trial court's rulings that the original arresting officer had a reasonable articulable suspicion to justify the stop and that there was probable cause to support the arrest by that officer. Based on our review of the record and the arguments of counsel, however, we dispose of the remaining issues presented by this case by opinion, pursuant to Utah R.App.P. 31(f).[1] Those issues are whether the defendant was entitled to a Miranda warning after the arrest by the original investigating officer (Mitchell), and before further investigation by a second officer (Gustin) and, if so, whether the results of that further investigation should have been suppressed.
During the evening of August 4, 1988, officer Mitchell was contacted by the police dispatcher and advised of a fight going on in Altona, during which shots were reported to have been fired. The dispatcher advised the officer that a pickup with clearance lights on top was leaving the scene. Officer Mitchell traveled to the remote area where he observed a vehicle matching the description traveling on a dirt road leaving the Altona area. He judged that the vehicle was traveling in excess of the speed limit. He did not recognize the vehicle as belonging to any of the residents of the area. After the vehicle turned onto the highway, the officer pulled in front of the vehicle, causing it to stop. Upon contacting the driver of the vehicle, Officer Mitchell observed a strong odor of alcohol. He observed that the driver was very careful about his speech, was breathing heavily, and appeared to be exerting an effort to control his balance. The defendant conversed with Officer Mitchell about the incident reported by the dispatcher and confirmed that shots had been fired. The defendant also admitted to the officer that he had been drinking, but the officer did not recall that he indicated how much he had consumed. Officer Mitchell concluded that defendant appeared to be under the influence of alcohol to the extent that he was not capable of safely driving the vehicle. The officer then placed the defendant under arrest for driving under the influence of alcohol.
Officer Mitchell left the defendant with Rudy Monsen, a member of a search and rescue group who heard the dispatcher's call and came to assist the officer. Monsen testified that he did not know the officer had placed the defendant under arrest, but heard the officer advise the defendant that he was to remain at the scene. Officer Mitchell advised Monsen to remain with the defendant until another officer arrived. Monsen testified that Trooper Gustin arrived 15 to 20 minutes later.
Officer Mitchell contacted Utah Highway Patrol Trooper Gustin to come to the scene where a suspect, who was "probably DUI", waited. Officer Mitchell then proceeded to the site of the fight that had been reported. Trooper Gustin did not understand that the defendant had been placed under arrest, but understood that he had been detained. Trooper Gustin administered field sobriety tests at the scene, including the horizontal gaze nystagmus test, finger count test, and walk and turn test. The finger count test required the defendant to count out loud. Based upon the defendant's performance on the field sobriety tests, Trooper Gustin placed the defendant under arrest and transported him to the police station where a breath test was performed. At the time of trial, the results of the breath test were not admitted due to the State's inability to satisfy the requirements for the evidentiary foundation. With the concurrence of *113 both counsel, the jury was admonished to disregard all testimony previously given as to the test.
Prior to trial, the defendant made a motion to suppress all evidence obtained "pursuant to and including the initial traffic stop." The grounds for the motion were "the Fourth, Fifth and Sixth Amendments to the Constitution of the United States, and U.C.A. 77-35-12 (1982), and Constitution to the State of Utah, Article 1, Sections 7, 12, and 14." The trial court ruled that the initial traffic stop was supported by a reasonable articulable suspicion and was not violative of the fourth amendment and that the arrest was supported by probable cause. The trial court then turned to the final issue of "whether or not Miranda is required for the police officer to conduct the field sobriety test" and more specifically, whether the field sobriety tests were communicative or testimonial and thus within the scope of Miranda. The trial court ruled that the defendant had been placed under arrest by officer Mitchell, was in a custodial setting and, as such, was entitled to the Miranda warning. The trial court then instructed counsel for the state that it was the state's burden to show that the field sobriety tests were an exception to the Miranda requirement. The trial court took considerable care in framing the issue for the parties and invited them to provide written argument. Neither party did so. At trial, the defendant "renewed" the motion to suppress. The trial judge then indicated his understanding that he had ruled that the defendant was entitled to a Miranda warning and his belief that the defense was obligated to pursue the matter further. The trial court ruled that the failure to timely do so constituted a waiver of the suppression issues. The defendant preserved his objections to the admissibility of evidence that he had sought to have suppressed.
Although the defendant's arguments in the trial court focused on self-incrimination, his arguments on appeal are premised on the sixth amendment right to have counsel present at all critical stages in the proceeding. The two issues, however, cannot be treated separately. The purpose of Miranda's requirement that a defendant be advised of the right to counsel is to guarantee effectuation of the privilege against self-incrimination. See State v. Nece, 206 N.J. Super. 118, 501 A.2d 1049, 1055 (N.J.Super.Law Div. 1985). Where there is no privilege against self-incrimination with respect to non-testimonial evidence, there is no right to counsel otherwise required by Miranda. Id. (citing Schmerber v. California, 384 U.S. 757, 766, 86 S.Ct. 1826, 1833, 16 L.Ed.2d 908 (1966)); see also People v. Burhans, 166 Mich. App. 758, 421 N.W.2d 285, 289 (1988); Salt Lake City v. Carner, 664 P.2d 1168, 1173 (Utah 1983) (Durham, J., concurring) ("The basic aim of the Miranda warning is to secure the privilege against self-incrimination."). We thus consider the self-incrimination issue in conjunction with the consideration of the defendant's sixth amendment argument.
In the trial court, the defendant relied upon Salt Lake City v. Carner, 664 P.2d 1168 (Utah 1983), which construed the self-incrimination clause contained in Article 1, Section 12 of the Utah Constitution in the context of field sobriety tests. In Carner, the majority concluded that the defendant was not in custody at the time of the tests and, accordingly, held that he was not "compelled to give evidence against himself" in violation of the Utah Constitution. Based upon that ruling, the majority opinion states, "[w]e do not reach the question whether the taking of field sobriety tests constitutes giving evidence against oneself as protected by Article I, Section 12, Utah Constitution." 664 P.2d at 1172. Despite this express reservation in the opinion, the defendant in this case argued below that, once it was determined that the defendant was in custody, Carner required suppression of all further evidence in the absence of a Miranda warning.[2] Because the court *114 expressly reserved the question of whether field sobriety tests in a custodial setting would trigger the right under the Utah Constitution against self-incrimination, we find defendant's assertion to be without merit. Concurring in Carner, Justice Durham took the position that the defendant was in custody, but the results of field sobriety tests were not testimonial in nature, and instead constituted "real or physical evidence." Accordingly, she concluded, "[s]uch tests do not violate an accused's privilege against self-incrimination because they are nontestimonial in nature." 664 P.2d at 1173 (Durham, J., concurring).
The issue reserved in Carner was determined in Salt Lake City v. Womack, 747 P.2d 1039 (Utah 1987), where the defendant claimed that field sobriety tests violated her right against self-incrimination under Article I, Section 12 of the Utah Constitution. The Utah Supreme Court ruled:
Womack contends that she was compelled to take the roadside sobriety tests and thus was forced to give evidence against herself ...
... In [American Fork City v. Crosgrove, 701 P.2d 1069 (Utah 1985)], we held that the privilege against self-incrimination expressed in the state constitution is limited to evidence that is testimonial or communicative in nature. Specifically, we ruled that the defendant's privilege against self-incrimination was not violated when he was required to submit to a breathalyzer test under threat of losing his driver's license.
... Under Crosgrove, there is no violation of the privilege against self-incrimination by the requirement that a motorist perform field sobriety tests.
747 P.2d at 1042. Based on the foregoing, we conclude that the defendant's right against self-incrimination under the Utah Constitution was not violated by the field sobriety tests because he was not compelled to give testimonial evidence against himself. The fact that defendant was required to count out loud does not compel a different conclusion. See, e.g., State v. Thompson, 237 Mont. 384, 773 P.2d 722 (1989) (field sobriety tests found not testimonial, although tests included reciting the alphabet); People v. Burhans, 166 Mich. App. 758, 421 N.W.2d 285 (1988) (field sobriety tests found not testimonial, although tests included reciting the alphabet and counting).
We next consider whether the defendant's rights against self-incrimination under the United States Constitution were violated by administration of field sobriety tests. The language of the United States Constitution's self-incrimination clause differs somewhat from the analogous clause in the Utah Constitution. Article I, Section 12 of the Utah Constitution provides, in relevant part, that "the accused shall not be compelled to give evidence against himself... ." In contrast, the fifth amendment to the United States Constitution includes the statement that no person "shall be compelled in any criminal case to be a witness against himself." In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the United States Supreme Court held that "the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature, and that the withdrawal of blood and use of the analysis in question in this case did not involve compulsion to these ends." 384 U.S. at 761, 86 S.Ct. at 1830-31. The Court explained that the "distinction which has emerged ... is that the privilege is a bar against compelling `communications' or `testimony', but that compulsion which makes a suspect or accused the source of `real or physical evidence' does not violate it." 384 U.S. at 764, 86 S.Ct. at 1832. This distinction has been applied to field sobriety tests in a number of reported cases. See, e.g., Commonwealth v. Carey, 26 Mass. App. Ct. 339, 526 N.E.2d 1329 (1988); People v. Burhans, 166 Mich. App. 758, 421 N.W.2d 285 (1988); State v. Breeden, 374 N.W.2d 560 (Minn.App. 1985); State v. Thompson, 237 Mont. 384, 773 P.2d 722 (1989); State v. Knoch, 86 Or. App. 15, 738 *115 P.2d 979 (1987); State v. Nece, 206 N.J. Super. 118, 501 A.2d 1049 (N.J.Super.Law Div. 1985). We agree with Justice Durham in her concurring opinion in Salt Lake City v. Carner, that "the overwhelming weight of authority holds that, although a suspect or accused cannot be `compelled' to perform roadside or field sobriety tests, such tests do not violate an accused's privilege against self-incrimination because they are nontestimonial in nature." 664 P.2d at 1173.
Having concluded that the defendant was not entitled to a Miranda warning prior to the field sobriety tests, we further conclude that the right to counsel was not violated. See Schmerber, 384 U.S. at 766, 86 S.Ct. at 1833 (because no right against self-incrimination was implicated in this case, there was no right to counsel as to that advice.)
For the reasons set forth herein, we hold that defendant's motion to suppress was properly denied.[3] The judgment is affirmed.
All concur.
NOTES
[1]  Utah R.App.P. 31(f) provides: "If it appears to the court after the case has been submitted for decision that a written opinion should be issued, the time limitation in paragraph (d) shall not apply and the parties will be so notified." A case determined by written order under paragraph (d) of Rule 31 "will not stand as precedent, but, in other respects, will have the same force and effect as other decisions of the court." Utah R.App.P. 31(e). When this court exercises its option under Rule 31(f) to dispose of a case by written opinion, we deem that opinion, if published, to have the same precedential effect as other published opinions of this court.
[2]  The Utah Supreme Court has not expressly ruled upon the question of whether Miranda warnings are required under the Utah Constitution. Sandy City v. Larson, 733 P.2d 137, 141 (Utah 1987) (Durham, J., concurring and dissenting). Our disposition in this case makes it unnecessary to reach this issue.
[3]  The trial court's ruling on the suppression motion was based upon his belief that defendant had waived the self-incrimination issue as to the field sobriety tests by not providing further briefing. Although the record reflects that this conclusion was erroneous, we conclude that the motion to suppress, nevertheless, was properly denied. See State v. Bryan, 709 P.2d 257, 260 (Utah 1985) ("On appeal, this Court may affirm the trial court's decision on any proper grounds, even though the trial court assigned another reason for its ruling.")


Filed 8/26/14 P. v. Jefferies-Echols CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

                                                       COPY

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                        (Placer)
                                                            ----

THE PEOPLE,                                                                                C071470

                   Plaintiff and Respondent,                                     (Super. Ct. No. 62111466)

         v.

JENNIFER LORRAYNE JEFFERIES-ECHOLS,

                   Defendant and Appellant.

         Defendant Jennifer Lorrayne Jefferies-Echols entered a plea of no contest to
receiving aid by misrepresentation. (Welf. & Inst. Code, § 10980, subd. (c)(2).) The trial
court granted her three years of formal probation subject to certain terms and conditions
with which she agreed to comply, including that she submit to random warrantless
searches and seizures. On appeal, she contends imposition of the search condition was an
abuse of the court’s discretion. We affirm the judgment.

                                                             1
                                 FACTS AND PROCEEDINGS

       This summary of facts is taken from the stated factual basis for defendant’s plea as
agreed upon by the parties:
       “[D]efendant applied for and received aid and intentionally falsified paperwork
and failed to report . . . income from unemployment insurance benefits,” resulting in an
overpayment of benefits to defendant in the amount of $16,222.
       Defendant was charged with perjury by false application for aid (Pen. Code,
§ 118—count one) and receiving aid by misrepresentation (Welf. & Inst. Code, § 10980,
subd. (c)(2)—count two), both felonies. At the time defendant entered her no contest
plea to count two, defense counsel objected to the probation condition requiring her to
“[s]ubmit person, place of residence, vehicle or area over which [defendant] has control
to search and seizure at any time, day or night, with or without a search warrant, and with
or without probable cause, by the probation officer or any peace officer for the purpose of
determining compliance with conditions of release or probation.”
       Defense counsel objected to the search and seizure condition as not reasonably
related to defendant’s crime, and argued that “this is not the type of theft case where
[defendant] took some item and placed it in her – hid it in her jacket and left the store or
something like that. This is where she failed to report something.” Counsel further
argued that because defendant would be unable to receive welfare in the future, “it is very
unlikely that she would ever . . . be able to commit this same crime. And even if she did,
search and seizure is still not something that is going to help law enforcement determine
that she is committing a crime like this.”
       The prosecution argued it was possible defendant could, at some point, become re-
eligible to receive aid. However, even if defendant were personally prohibited from
doing so, she could still receive benefits on behalf of dependents, in which case a search

                                              2
of her home would be appropriate to determine whether she was fully and accurately
reporting information to obtain aid.
       The trial court imposed the probation condition, concluding that, while search and
seizure “is not always appropriate . . . it is certainly appropriate in this case.”

                                          DISCUSSION

       Defendant contends the probation condition requiring that she submit to
warrantless search and seizure is unreasonable and invalid under People v. Lent (1975)
15 Cal.3d 481 (Lent) and its progeny, thus violating her right to due process and to be
free from unreasonable search and seizure under the state and federal Constitutions.
       We review conditions of probation for abuse of discretion. (People v. Olguin
(2008) 45 Cal.4th 375, 379 (Olguin).) “ ‘[A] probation condition that imposes limitations
on a person’s constitutional rights must closely tailor those limitations to the purpose of
the condition to avoid being invalidated as unconstitutionally overbroad.’ [Citations.]”
(Id. at p. 384.) “On the other hand, we have observed that probation is a privilege and not
a right, and that adult probationers, in preference to incarceration, validly may consent to
limitations upon their constitutional rights—as, for example, when they agree to
warrantless search conditions.” (Ibid.)
       A probation condition will not be invalidated unless it (1) has no relationship to
the defendant’s crime, (2) relates to conduct which is not in itself criminal, and (3)
requires or forbids conduct which is not reasonably related to future criminality. (Lent,
supra, 15 Cal.3d at p. 486, superseded on another ground as stated in People v. Wheeler
(1992) 4 Cal.4th 284, 290-295.) The test is conjunctive; all three prongs must be satisfied
before a reviewing court will invalidate a probation condition. (Lent, supra, at p. 486, fn.
1; Olguin, supra, 45 Cal.4th at p. 379.)
       The trial court did not abuse its discretion here. Defendant pleaded no contest to
“willfully and knowingly, with the intent to deceive, by means of false statement or

                                               3
representation . . . obtained . . . aid . . . for . . . herself or for a child not in fact entitled
thereto.” (Welf. & Inst. Code, § 10980, subd. (c).) Contrary to defense counsel’s
somewhat watered down characterization at sentencing that defendant simply “failed to
report something,” and defendant’s characterization here on appeal that she
“underreport[ed] income on a form,” the agreed upon factual basis for defendant’s plea
provided that she “intentionally falsified paperwork” in an effort to obtain a significant
benefit to which she was not entitled. Under that circumstance, assuming defendant may
once again be eligible to receive welfare assistance, whether for herself or for a family
member, an unannounced search and possible seizure of documents would most certainly
serve to determine whether information submitted by her in an attempt to obtain that
assistance (e.g., income, number of persons living in her household, number of
dependents) has in fact been fully and accurately reported.
        Defendant argues a search and seizure condition for that purpose would be
completely unnecessary, positing that any possible scheme to perpetrate another similar
welfare fraud “would not survive routine screening by welfare eligibility workers.” We
are not persuaded, particularly when a so-called “routine screening” could potentially
consist of little more than a review of documentation provided by defendant.
        In any event, “[t]here is no requirement that a search pursuant to a probation
condition be founded on indications that the probationer ‘has resumed the very type of
misconduct for which [s]he was placed on probation.’ ” (People v. Kasinger (1976)
57 Cal.App.3d 975, 978, quoting People v. Constancio (1974) 42 Cal.App.3d 533, 539.)
Even assuming defendant is never again eligible for welfare assistance, it is possible she
will be eligible for financial aid from any number of other sources which would require
her to provide full and accurate information regarding factors critical to determine what
amount of aid, if any, to be disbursed. In other words, the future criminality sought to be
curtailed is not simply welfare fraud, but fraud in general.

                                                   4
       Defendant claims there is “ ‘no reasonable basis for sustaining the [search and
seizure] condition’ ” because it bears no reasonable nexus to present or future criminality.
(People v. Brandao (2012) 210 Cal.App.4th 568, 574.) We disagree. Theft perpetrated
by fraud is arguably more easily concealed, and perhaps more sophisticated, than
common thievery. The fraud is revealed by comparing information provided by the
perpetrator which at face value appears accurate (e.g., his assets are minimal and he has
three children) to whatever true facts can be discovered (e.g., he owns two sports cars, a
yacht, and an extensive art collection and has only one child). Here, defendant did not
simply neglect to report a small amount on a single form; she intentionally falsified
paperwork and failed to report her income from unemployment insurance benefits,
concealing her fraud on the welfare system for nearly 17 months and netting over
$16,000 in the process. While there is nothing in the record to shed light on defendant’s
past history, the circumstances of the current offense reveal a sophistication on the part of
defendant to perpetrate more than a casual fraud. The search and seizure condition is
reasonably related to curtailing future fraudulent behavior.
       There was no abuse of discretion.

                                       DISPOSITION

       The judgment is affirmed.

                                                        HULL                  , Acting P. J.

We concur:

      ROBIE                 , J.

      DUARTE                , J.

                                             5


                                                                            FILED
                           NOT FOR PUBLICATION                              DEC 23 2016

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS

                            FOR THE NINTH CIRCUIT

PAUL JENNINGS,                                   No. 16-15182

              Plaintiff-Appellant,               D.C. No. 1:15-cv-00840-SAB

 v.
                                                 MEMORANDUM*
ALAN AZIZIAN, Chief Psychologist at
Coalinga State Hospital; AUDREY KING,
Executive Director at Coalinga State
Hospital,

              Defendants-Appellees.

                    Appeal from the United States District Court
                        for the Eastern District of California
                Stanley Albert Boone, Magistrate Judge, Presiding**

                         Submitted December 14, 2016***

Before:      WALLACE, LEAVY, and FISHER, Circuit Judges.

      Paul Jennings appeals pro se from the district court’s judgment dismissing

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            Jennings consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
      ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
his 42 U.S.C. § 1983 action arising from his confinement under California’s

Sexually Violent Predators Act (“SVPA”). We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo a dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii).

Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1138 (9th Cir. 2005). We affirm.

      The district properly dismissed Jennings’s action because Jennings failed to

allege facts sufficient to show that the SVPA’s post-commitment procedures in

effect in 2013 deprived him of due process notwithstanding any denial of annual

mental health evaluations. See Portman v. County of Santa Clara, 995 F.2d 898,

904 (9th Cir. 1993) (setting forth elements of a § 1983 procedural due process

claim); see also Cal. Welf. & Inst. Code § 6608(a) (2013) (“A person who has been

committed as a sexually violent predator shall be permitted to petition the court for

conditional release with or without the recommendation or concurrence of the

Director of State Hospitals.”); id. § 6608(k) (2013) (“After a minimum of one year

on conditional release, the committed person, with or without the recommendation

or concurrence of the Director of State Hospitals, may petition the court for

unconditional discharge.”).

      We reject as unsupported by the record Jennings’s contention regarding the

magistrate judge.

      Jennings’s motion for appointment of counsel, filed on March 25, 2016, is

                                          2                                     16-15182
denied.

      AFFIRMED.

                  3   16-15182


Court of Appeals
of the State of Georgia

                                       ATLANTA,____________________
                                                December 16, 2016

The Court of Appeals hereby passes the following order:

A17A0406. CAROL WILKERSON v. THE STATE.

      Appellant in this case has filed a Motion for An Appointment of Counsel.
After review of the record, it is noted that Appellant had previously filed a Motion
for Appointment of Counsel with the trial court. Thus, it is hereby ordered that the
case be REMANDED to the trial court for a ruling on Appellant’s Motion for
Appointment of Counsel. When such issue is resolved, the Appellant shall have
thirty (30) days to file a new Notice of Appeal.

                                       Court of Appeals of the State of Georgia
                                              Clerk’s Office, Atlanta,____________________
                                                                        12/16/2016
                                              I certify that the above is a true extract from
                                       the minutes of the Court of Appeals of Georgia.
                                              Witness my signature and the seal of said court
                                       hereto affixed the day and year last above written.

                                                                                , Clerk.