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Criminal Law Click here for the full text of this decision FACTS: The petitioner, Steve Brown, appeals the district court’s denial of habeas corpus relief on his claim that his trial counsel was ineffective because the lawyer failed to move to quash a grand jury indictment on the ground that the process of selecting the grand jury foreperson was racially biased. HOLDING: Affirmed. Under 28 U.S.C. �2254 (d), “[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim . . . resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” To establish that he received ineffective assistance of counsel, Brown must satisfy the two-prong test of Strickland v. Washington, 466 U.S. 668 (1984), by showing that counsel’s performance was deficient and that this deficiency prejudiced his defense. To establish that counsel’s performance was deficient, Brown must show that the representation “fell below an objective standard of reasonableness.” As stated in Strickland, “Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Thus, Brown “ must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.” Brown alleges that his trial counsel was ineffective for failing to move to quash the indictment on the ground that the selection of the grand jury foreperson was racially biased. He contends that, if counsel had moved to quash the indictment, the U.S. Supreme Court’s decision in Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993 (1979), would have required the trial court to grant the motion. Once the indictment was dismissed, Brown argues that his counsel would have enjoyed a superior negotiating position and may have been able to plea bargain for a more favorable sentence. Assuming that a successful motion to quash the superceding indictment charging Brown with second-degree murder could have been filed, counsel had a powerful strategic reason for not doing so. The court agrees with the district court that, if counsel had filed a motion to quash the indictment, the state would have likely presented the case to a second grand jury. Given the heinous nature of Brown’s crime and the strong evidence against him, his counsel had to be convinced that a second grand jury would indict Brown for first-degree murder, carrying with it a potential sentence of death. By allowing Brown’s trial to proceed under the superceding bill of indictment, trial counsel foreclosed the possibility that Brown would be put to death for his crime. Under these circumstances, the record strongly supports the view that counsel’s actions were the result of a sound strategic decision to prevent his client from facing a death sentence. The court agrees with the district court that Brown failed to establish that his counsel’s service was deficient under the first prong of Strickland v. Washington, and therefore, his claim of ineffective assistance of counsel is without merit. OPINION: Davis, J.; Davis, Hall and Garza, JJ.

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