Overstreet

MEMORANDUM *

1. Petitioner James Antonio Over-street’s attorney was not ineffective for failing to object to the state trial court’s ruling that the deliberating jurors could not view his tattoos. As Overstreet’s attorney did not seek to introduce Over-street’s tattoos into evidence during trial, and a jury may only consider facts admitted into evidence during trial, an objection to the court’s denial of the jury’s request *667 would have been futile. See Turner v. Louisiana, 879 U.S. 466 , 472-73, 85 S.Ct. 546 , 13 L.Ed.2d 424 (1965) (noting that the Sixth Amendment requires a trial by jury in which the jury verdict must be determined solely upon evidence admitted during the evidentiary portion of the trial); see also James v. Borg, 24 F.3d 20, 27 (9th Cir.1994) (“Counsel’s failure to make a futile motion does not constitute ineffective assistance of counsel.”) (citations omitted).

2. A trial court has discretion to reopen a proceeding to allow for the introduction of newly discovered evidence of critical importance. See People v. Newton, 8 Cal.App.3d 359, 381-84 , 87 Cal.Rptr. 394 (1st Dist.1970). However, Overstreet’s tattoos were not newly discovered evidence and given the…