Felix

Mark Anthony Felix was convicted of two counts of residential burglary by a jury. The court found he had four prior serious felony convictions and sentenced him to serve twenty-five years and four months in prison. He contends evidence that he was a heroin user was improperly admitted and that the prosecutor prejudicially commented on his addiction. He also argues the court failed to instruct sua sponte that he was not guilty of burglary of his sister’s home because she implicitly consented to his entering her home and taking whatever he wanted. In a consolidated action, he petitions us for a writ of habeas corpus claiming he was denied effective representation of counsel because his attorney failed to object to the evidence of his heroin use. Although trial counsel also used the drug evidence to support a defense to the burglary charge, she provided Felix with a declaration after conviction to the effect she failed to object to the prosecutor’s evidence out of ignorance. Concluding this type of Monday morning quarterbacking should not result in a touchdown nunc pro tunc, we deny his petition and affirm the judgment.

I

Facts

On January 2, 1992, Beatrice Gutierrez left…