Unpublished Disposition, 848 F.2d 198 (9th Cir. 1982)

MEMORANDUM^* 

Lacey, a state prisoner, appeals pro se the denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. He contends that (1) the prosecution's failure to disclose Brady materials deprived him of due process; (2) he was denied the effective assistance of counsel in violation of the Sixth Amendment; (3) the district court's failure to conduct an evidentiary hearing deprived him of due process; and (4) the state court erred in its Fourth Amendment ruling regarding the admissibility of allegedly improperly seized evidence. We affirm in all respects.

FACTS

Lacey was convicted in the Pima, County, Arizona Superior Court of three interrelated drug offenses: possession of cocaine for sale, transportation of cocaine, and conspiracy to possess cocaine for sale. His sole defense at trial was entrapment; thus the bulk of the testimony concerned the defendant's predisposition to traffic in drugs. The government's proof of predisposition fell into two categories: (1) testimony of the informant, a Mr. Alvey, regarding the defendant's prior bad acts; and (2) testimony of two detectives and an asserted co-conspirator, Lance Estes, regarding the defendant's involvement in the transportation of cocaine from Miami in 1980.¹ 

Lacey claims that his attorney should have moved to suppress Alvey's testimony regarding the prior bad acts and all of the testimony regarding the Miami 1980 incident. The attorney's failure to do so, Lacey urges, renders his counsel's assistance constitutionally deficient.

Lacey admits that his counsel moved to suppress some evidence of the Miami incident but insists that a better ground for suppression was available. He blames counsel's failure to prepare adequately for the suppression hearing, as well as counsel's alleged failure to move in limine for the suppression of the prior bad acts and his alleged failure to prepare adequately for trial, on the prosecution's delinquent responses to counsel's repeated request for Brady materials and its lack of cooperation in making witnesses available for interviews.

Lacey also argues that had counsel raised the right arguments in his motion to suppress evidence illegally seized in Miami, there would not have been probable cause for the arrest in Dallas.

Lacey raised the same arguments in his Rule 32 post-conviction petition to the Arizona Superior Court and in his motion for review of that order. In the latter, he added the contention that the state trial court had erred in denying the Rule 32 petition without conducting an evidentiary hearing. Lacey then unsuccessfully appealed to the Arizona Court of Appeals and the Arizona Supreme court denied certiorari. Lacey's habeas petition to the federal district court was referred to a magistrate for recommendation. After conducting an independent review of the record, the magistrate recommended denial of the petition. The district court adopted the recommendation and, upon proper application, issued a certificate of probable cause. Lacey timely appeals.

I BRADY VIOLATION

Lacey claims he was denied due process by reason of the prosecution's failure to disclose police reports which could have been used in the cross-examination of the informant, Alvey.²  He reasons that if Alvey did report Lacey's transactions to Agent Stevens as he testified he did, R.T. Oct. 5, 1982 at 83, 87, 92 and Oct. 6, 1982, at 10, his statements would have been transcribed. The government denies that any such reports exist and claims that, in any case, Lacey has failed to show, as required by United States v. Bagley, 473 U.S. 667, 678 (1985) (defining materiality), that there is a reasonable probability that had disclosure been made, there would have been a reasonable doubt of his guilt.

Before reaching the requirement of materiality, a petitioner must show a Brady violation. Brady v. Maryland, 373 U.S. 83 (1963). Lacey's assertions do not. The rule of Brady, the Supreme Court has said, applies in three situations: " [e]ach involves the discovery, after trial, of information which had been known to the prosecution but unknown to the defense." United States v. Agurs, 427 U.S. 97 (1976).

Lacey has presented no evidence of any undisclosed information in the possession of the prosecution; rather, his allegations are bald, conclusory assertions, unsupported by the record.

Without some concrete showing of nondisclosure of Brady material, dismissal of this claim was proper. Machibroda v. United States, 368 U.S. 487, 495 (1962). Petitioner has failed to allege any facts which, if true, would entitle him to an evidentiary hearing. Lincoln v. Sunn, 807 F.2d 805, 808 (9th Cir. 1987). As we said in United States v. Sukumolachan, 610 F.2d 685 (9th Cir. 1980), "Brady ... does not require the government to create exculpatory material that does not exist." 610 F.2d at 687.

II INEFFECTIVE ASSISTANCE OF COUNSEL

In Strickland v. Washington, 466 U.S. 668, 687-96 (1984), the Supreme Court established a two-prong test to evaluate a habeas petitioner's claim of ineffective assistance of counsel. The first prong, the performance prong, requires a showing that counsel's performance fell short of the "reasonably effective assistance" that the sixth amendment guarantees a criminal defendant.³  466 U.S. at 690. The second prong, the prejudice prong, requires a showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.

In two separate but related claims, Lacey asserts that his trial counsel was unprepared both at the suppression hearing and at trial due to his failure to conduct interviews and to obtain discoverable investigative materials. If this is true, counsel's failure to raise the motions or particular arguments for suppression cannot reasonably be said to have been the product of a tactical decision and therefore entitled to deference. We discuss the inadequate preparation charges first, therefore, because resolution of them bears upon the next four claims.

As with the Brady claim, petitioner fails to allege concrete facts supporting his contentions. With the exception of the alleged reports of the Alvey-Stevens conversations, the prosecution turned over all the documents that the defense requested. Counsel's statements at and his handling of the motion in limine to prevent testimony of all prior bad acts manifests that he received a list of prior bad acts before the hearing. See R.T. Sept. 30, 1982 at 26. Our review of the transcript from the suppression hearing also reveals that defense counsel had been provided with the full text of the expected testimony of all the witnesses of the Miami and Dallas incident. Furthermore, his arguments in support of his motion to suppress the Miami incident on October 1 reveal his personal knowledge of the details of the incident.

Trial counsel did request interviews with all of the detectives and material government witnesses. His cross-examination at trial shows that he conducted interviews of the most important government witnesses, i.e. those of Detective Glenn who made the arrest in Dallas, Alvey, the informant, Robert Shockey, the co-conspirator, and Michael Stevens, Alvey's contact.

Lacey has produced no evidence that other requested interviews were not conducted.

Lacey claims that counsel should have moved on two grounds to suppress proof of the prior bad acts to which Alvey testified: (1) that the acts themselves were remote; and (2) that Alvey's testimony was inherently unreliable and his story was uncorroborated.

The assertion that trial counsel failed to move in limine to suppress Alvey's testimony concerning his prior bad acts is unfounded. The motion in limine filed September 27, 1982 sought suppression not only of testimony relating to the Miami incident but of all prior bad acts. Counsel argued that "before evidence of a prior bad act, for whatever reason, can be admitted there has to be a showing--a substantial showing--of evidence to take that individual act to the jury." R.T. Sept. 30, 1982 P. 26. In essence, Lacey is really claiming that counsel did not raise the right arguments in the suppression motion: "it is clear from counsel's argument to the Court that he didn't understand the rules of evidence regarding prior bad acts." Opening Brief p. 36. Lacey's contention can be treated therefore in one of two ways.

First, his claim could be treated as an attack on an evidentiary ruling--a matter of law committed to the trial court's discretion, Thomas v. Cardwell, 626 F.2d 1375, 1386 (9th Cir. 1980). To warrant relief on this ground, the admission of the prior bad acts would not only have to have been erroneous but their admission must somehow have violated petitioner's rights to due process. See, e.g. Middleton v. Cupp, 768 F.2d 1083, 1085-86 (9th Cir. 1985). Second, the claim could be analyzed as one for ineffective assistance of counsel. Lacey cannot prevail under either treatment.

Testimony of the prior bad acts was properly admissible under Arizona law to "complete the story." This doctrine allows admission of otherwise uncorroborated and potentially inadmissible hearsay to enable the jury to understand the entire context of the crime charged. State v. Collins, 111 Ariz. 303, 528 P.2d 829, 831 (1974); State v. Sanchez, 130 Ariz. 295, 635 P.2d 1217, 1222 (Ariz.App.1979). Testimony of Lacey's bragging to Alvey about the marijuana, cocaine and other deals, even if untrue, were relevant to counter Lacey's claim of entrapment.

Furthermore, counsel's decision to argue lack of foundation rather than remoteness as the ground for suppression was a tactical decision which we do not second-guess. Strickland, 466 U.S. at 689. Nor was his decision to object on grounds of lack of foundation objectively unreasonable under Arizona law. See State v. McGann, 132 Ariz. 296, 298, 645 P.2d 811, 813 (1982). Since Lacey has not shown deficient performance, his claim of ineffective assistance must fail.

Lacey bases his next claim of ineffective assistance on counsel's failure to move to suppress certain evidence and his failure to argue certain grounds in moving to suppress other evidence. All the evidence in question was seized in Miami and Dallas in 1980.

This claim is meritless. Lacey's only defense at trial was entrapment; the Government was entitled to produce evidence pertaining to Lacey's predisposition to deal in narcotics. Evidence obtained in violation of the Fourth Amendment may be used to impeach a defendant's direct testimony, United States v. Leon, 468 U.S. 897, 910 (1984), particularly where the defendant has opened the door by claiming never to have been involved in the type of crime charged. Walder v. United States, 347 U.S. 62, 65 (1954).

Therefore, even if all the evidence and fruits of the 1980 searches was illegally seized, it would still have been admissible at Lacey's trial to impeach him on lack of predisposition. Counsel had no grounds on which to move for its suppression, and committed no error by not raising the arguments Lacey urges.

III DENIAL OF AN EVIDENTIARY HEARING⁵ 

Lacey was not entitled to an evidentiary hearing under Townsend v. Sain, 372 U.S. 293 (1963). He did not present sufficient facts, which if true, would entitle him to habeas relief.

CONCLUSION

Review of Lacey's final claim that the court erred in holding that there was not probable cause for his arrest in Dallas is barred by Stone v. Powell, 428 U.S. at 494, since it is a Fourth Amendment claim which he had a full and fair opportunity to litigate in state court.

The district court's denial of Lacey's habeas corpus petition is AFFIRMED.