Unpublished Disposition, 883 F.2d 1025 (9th Cir. 1989)

MEMORANDUM^** 

Stephen Dubov appeals his conviction, following a jury trial, for possession with intent to distribute cocaine. We affirm.

Dubov contends his confession was not voluntary, knowing or intelligent. Dubov also contends that his trial counsel provided ineffective assistance because he: (1) failed to raise the issue of the voluntariness of Dubov's confession at the suppression hearing, (2) argued that the warrantless parole search of Dubov's house was illegal at the suppression hearing, (3) failed to file a sentencing memorandum, (4) failed to make objections at trial, and (5) failed to present evidence to support theories he posited in his opening and closing arguments.

Dubov's confession was voluntary because it was not elicited by police coercion. See Colorado v. Connelly, 107 S. Ct. 515, 522-23 (1986). Dubov's confession was knowing and intelligent because he was lucid when he confessed. See Grooms v. Keeney, 826 F.2d 883, 887 (9th Cir. 1987).

Dubov's first two claims of ineffectiveness lack merit because he was not prejudiced by his counsel's failure to raise either the voluntariness of Dubov's confession or his argument that the warrantless parole search of Dubov's house was illegal at the suppression hearing. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

We do not address Dubov's other claims of attorney ineffectiveness because they cannot be resolved without the development of a factual record. Those claims, if they have any merit, should be raised by collateral attack under 28 U.S.C. § 2255 to allow the district court to develop a factual record. See United States v. Pope, 841 F.2d 954, 958 (9th Cir. 1988).