60 F.3d 833

MEMORANDUM**

Jonathon Gurule, a state prisoner, appeals pro se the denial of his habeas corpus petition. We have jurisdiction under 28 U.S.C. Sec. 2253 and review de novo. James v. Borg, 24 F.3d 20, 24 (9th Cir.), cert. denied, 115 S. Ct. 333 (1994). We affirm.

Gurule first argues that his attorney rendered ineffective assistance at trial because he elicited damaging testimony from a police officer. Officer Krull identified a photograph of Laverne Gurule as the woman he saw at a hotel shortly after the shooting at the jewelry store. This does not amount to ineffective assistance. The hotel manager had already testified she saw the Gurules at the hotel the morning of the crime. The attorney elicited Officer Krull’s testimony to show that the Gurules may have been at the hotel, but the getaway car was not. Cf. Denham v. Deeds, 954 F.2d 1501, 1505 (9th Cir. 1992) (no ineffective assistance when attorney exercised professional judgment in refusing to call particular witness).

Gurule next argues that his attorney was ineffective because he failed to investigate, had six unproductive meetings with him, was afraid of him, and spent under two hours reviewing the police reports. We reject this argument because Gurule does not identify what his attorney should have done differently, especially in light of the overwhelming evidence against him, including eyewitness identifications and physicial evidence. James, 24 F.3d at 26; United States v. Molina, 934 F.2d 1440, 1448 & n.7 (9th Cir. 1991) (rejecting ineffective assistance claim because prisoner failed to show that further preparation would have affected defense in light of overwhelming evidence against him).

Gurule also contends his attorney was ineffective by failing to object to a juror’s continued service after the juror’s house burned down during deliberations. The parties agreed that the trial judge, in the absence of the parties, would question the juror about his ability to continue deliberations. Gurule has failed to show incompetence or prejudice. See Kimes v. United States, 939 F.2d 776, 779 (9th Cir. 1991) (no ineffective assistance in failure to object to juror when attorney had no reason to believe that juror was biased), cert. denied, 503 U.S. 936 (1992); United States v. Sears, 663 F.2d 896, 900 (9th Cir. 1981) (given its opportunity to view the jurors’ demeanor, the trial court has wide discretion to determine their competency to serve on jury), cert. denied, 455 U.S. 1027 (1982).

Finally, the victim of the shooting asked Gurule to repeat the words, “Get your ass back in here” in an angry voice, because he believed he would recognize the assailant’s voice. On the third try, the victim identified Gurule’s voice. On cross examination, the victim testified that he had told the police he would not be able to identify visually the assailant. This procedure was not unduly suggestive, did not violate due process, and did not implicate the privilege against self incrimination. United States v. Wade, 388 U.S. 218, 221-23 (1967) (requiring a defendant to utter the words of a criminal does not violate privilege against self incrimination); United States v. Domina, 784 F.2d 1361, 1369 (9th Cir. 1986) (in-court identification of voice was not unduly suggestive), cert. denied, 479 U.S. 1038 (1987); cf. United States v. Olvera, 30 F.3d 1195, 1197 (9th Cir.) (“a defendant’s utterance of a criminal statement may not have an undue influence on the jury where the jury has a clear understanding that the utterance is necessary for the identification of the defendant by a witness”), cert. denied, 115 S. Ct. 610 (1994).

Gurule raised other issues in the district court, but did not brief them on appeal; therefore, we do not address them. United States v. Alonso, 48 F.3d 1536, 1544 (9th Cir. 1995).

AFFIRMED.

MEMORANDUM**

Karluk Mayweathers, a California state prisoner, appeals pro se the district court’s (1) transfer of certain claims to the Eastern District of California; (2) denial of his application for a temporary restraining order; (3) dismissal of his claim that his cassette player, adaptor, calculator, and hobby craft items were unconstitutionally confiscated; (4) dismissal of his claim that the prison’s failure to institute a handicraft program violated his civil rights; and (5) summary judgment in favor of defendants upholding the prison regulation banning calculators. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We review a district court’s dismissal pursuant to 28 U.S.C. Sec. 1915(d) for abuse of discretion. Denton v. Hernandez, 504 U.S. 25, 33 (1992). We review a district court’s summary judgment de novo. McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.1992). We dismiss in part, affirm in part, and vacate and remand in part.

Mayweathers appeals the district court’s transfer of some of his claims to the Eastern District of California. Mayweathers already sought review of the transfer order, and we affirmed the transfer order in Mayweathers v. Bunnell, No. 93-17002, unpublished memorandum disposition (9th Cir. Nov. 4, 1994). “We will reconsider a ruling of this court on the same issue presented in the same action if a showing is made which compels us to reconsider our prior decision.” United States v. Houser, 804 F.2d 565, 568 (9th Cir.1986). Mayweathers presents no compelling reason to reconsider our previous ruling, and we therefore decline to revisit this issue. See id.

We dismiss Mayweathers’s appeal of the district court’s denial of his application for a temporary restraining order because it is a non-appealable order. See Hunt v. National Broadcasting Co., 872 F.2d 289, 292 (9th Cir.1989).

Mayweathers contends that the district court erred by dismissing his claim that his cassette player, adaptor, calculator, and hobby craft items were unconstitutionally confiscated. This contention has merit.

The district court found that, because Mayweathers had a state tort remedy, a federal claim under the Fourteenth Amendment was foreclosed under Hudson v. Palmer, 468 U.S. 517, 533 (1984), and Parratt v. Taylor, 451 U.S. 527, 540-41 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986). Generally, the negligent or intentional unauthorized deprivation of property by prison officials does not state a cognizable cause of action under section 1983 if the prisoner has an adequate post-deprivation state remedy. Hudson, 468 U.S. at 533; Taylor v. Knapp, 871 F.2d 803, 805-06 (9th Cir.), cert. denied, 493 U.S. 868 (1989).

Here, however, Mayweathers challenges the intentional and authorized deprivation of his property, and therefore states a claim despite the availability of an adequate remedy under state law. See, e.g., Piatt v. MacDougall, 773 F.2d 1032, 1036 (9th Cir.1985) (holding Parratt doctrine inapplicable to cases involving “deliberate, considered, planned or prescribed conduct by state officials”).

Because Mayweathers’s claim has an arguable basis in law and fact, Neitzke v. Williams, 490 U.S. 319, 325 (1989), the district court erred by dismissing the claim under 28 U.S.C. Sec. 1915(d). Accordingly, we vacate the dismissal of this claim and remand to allow issuance and service of process of Mayweathers’s claims. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir.1989).

Mayweathers contends that the district court erred by dismissing his claim that the prison’s failure to institute a handicraft program violated his civil rights. This contention lacks merit.

Although the district court overlooked the fact that Mayweathers had cited prison regulations concerning handicraft programs, the regulations do not create a constitutional liberty interest. Because the prison’s failure to institute a handicraft program is not an “atypical, significant deprivation,” the district court properly dismissed this claim as frivolous under 28 U.S.C. Sec. 1915(d). See Sandin v. Conner, 1995 LEXIS 4069, at * 26 (U.S. June 19, 1995).

Mayweathers contends that the district court erred by finding that the prison regulation banning calculators for prisoners not enrolled in prison approved education programs was reasonably related to a valid penological interest. This contention lacks merit.

In support of their motion for summary judgment, defendants submitted an affidavit by Cliff Johnson, an associate warden, stating that battery-powered calculators are a threat to inmate safety because contraband can be hidden inside the body of calculators. He also states that systematically searching calculators for contraband would be a burden on the staff. The evidence presented by the defendants established that the ban on calculators was reasonably related to security concerns, that an appeal process existed as an alternative means of exercising a prisoner’s right to due process, and that allowing calculators would be a burden on the prison. See Turner v. Safley, 482 U.S. 78, 89-90 (1987); see also Skelton v. Pri-Cor, Inc., 963 F.2d 100, 103 (6th Cir.1991) (upholding prison policy banning hard-cover books because of security reasons), cert. denied, 503 U.S. 989 (1992). Accordingly, the district court did not err by granting summary judgment in favor of defendants on Mayweathers’s claim for injunctive relief concerning the prison regulation banning calculators.

Defendants contend in their brief on appeal that Mayweathers’s claim for damages against defendant Reagan was automatically dismissed by law pursuant to Fed.R.Civ.P. 25(a)(1) ninety days after notice of Reagan’s death because Mayweathers failed to substitute another defendant in his place. Accordingly, we vacate and remand with instructions to dismiss Mayweathers’s claim for damages against defendant Reagan pursuant to Fed.R.Civ.P. 25(a)(1). See Weil v. Investment/Indicators, Research & Management, Inc., 647 F.2d 18, 21 n. 5 (9th Cir.1981).

In sum, we decline to consider Mayweathers’s appeal of the transfer order. We dismiss Mayweathers’s appeal of the district court’s denial of a temporary restraining order because it is a non-appealable order. We affirm the district court’s dismissal of Mayweathers’s claim concerning the institution of a handicraft program and the grant of summary judgment on Mayweathers’s claim for injunctive relief concerning the prison regulation banning calculators. We vacate the district court’s dismissal of Mayweathers’s claim of unconstitutional confiscation of items from his cell and remand for issuance and service of process of this claim. We also vacate the district court’s grant of summary judgment on Mayweathers’s claim for damages against defendant Reagan and remand with instructions to dismiss pursuant to Fed.R.Civ.P. 25(a)(1).

DISMISSED in part, AFFIRMED in part, and VACATED and REMANDED in part.