Unpublished Disposition, 893 F.2d 1338 (9th Cir. 1990)

MEMORANDUM^** 

Bert Mendenhall was convicted in Washington state court of two counts of statutory rape in the first degree. He raises five issues on habeas, none of merit. We affirm.

1. The Fourth Amendment claim.

Mendenhall argues all the evidence should have been suppressed because the underlying warrant was invalid. However, Stone v. Powell, 428 U.S. 465 (1976), bars such a claim on habeas when the "State has provided an opportunity for full and fair litigation of a Fourth Amendment claim." Id. at 482; Ahlswede v. Wolff, 720 F.2d 1108, 1110 (9th Cir. 1983). Washington provides an opportunity for a suppression hearing pursuant to Wash.Crim.R. 3.6. Mendenhall did not avail himself of this procedure. The magistrate correctly held Mendenhall's present challenge to the sufficiency of the search warrant is not cognizable on federal habeas.

2. The "prejudicial photographs."

"The dispositive issue is not whether introduction of the photographs violated state law evidentiary principles, but whether the trial court committed an error which rendered the trial so arbitrary and fundamentally unfair that it violated federal due process." Reiger v. Christensen, 789 F.2d 1425, 1430 (9th Cir. 1986) (citation omitted). The admissibility of the photographs was vigorously litigated and carefully limited. The juxtaposition of the photographs in the ziplock bag was relevant to show Mendenhall's lustful disposition towards the victims. No unfair prejudice occurred and no federal constitutional norms were violated.

3. Sufficiency of the evidence.

Viewed in the light most favorable to the prosecution a reasonable jury could have found present all the elements of statutory rape in the first degree. Mendenhall was over sixty years old, his victims five and three. After a careful hearing, the trial judge found Gina competent to testify. From Gina's testimony a reasonable jury could have found Mendenhall placed his tongue on Gina's and Charlene's vaginas, an act sufficient to sustain the convictions.

4. Ineffective assistance of counsel.

Generally, this court has no basis for finding a sixth amendment violation unless the defendant demonstrates how specific errors of counsel undermined the reliability of the conviction. United States v. Cronic, 466 U.S. 648, 659 n. 26 (1984); Strickland v. Washington, 466 U.S. 668 (1984). Mendenhall alleges he received ineffective assistance of counsel at trial because his attorney (1) failed to object to the introduction of inculpatory photographs; (2) failed to object to an illegal search and seizure; and (3) failed to inquire into a seventeen and one-half hour time lapse before the police were called.

(1) Mendenhall's counsel vigorously litigated the admissibility of the photographs in a pretrial motion to suppress and a motion in limine and successfully excluded much of the physical evidence from the prosecution's case in chief. The admissibility of the photographs was fully litigated in Mendenhall's direct and collateral state appeals.

(2) To prevail on a habeas claim based on counsel's failure to litigate a fourth amendment claim, Mendenhall must not only meet the burden of the two part Strickland test, he "must also prove that his Fourth Amendment claim is meritorious." Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). The search warrant in this case authorized the police to search for " [p]hotographs ... depicting 2 white female children ... engaged together with Bert Rader Mendenhall ... in sexual acts." The warrant was at least facially valid and properly executed; the description of the articles to be seized and the area to be searched was quite specific. See United States v. Hayes, 794 F.2d 1348, 1354 (9th Cir. 1986) (search warrant need only be reasonably specific). Because Mendenhall has not met his burden to show he had a valid fourth amendment challenge to the search warrant, his counsel's failure to challenge the warrant can not be construed as ineffective assistance.

(3) On his remaining claims--that counsel failed to pursue the seventeen and one-half hour time lapse before police were called and failed to object to hearsay testimony--Mendenhall has not demonstrated actual prejudice and therefore these claims do not merit habeas relief.

5. Extension of Time.

The district court granted the government an extension of time to respond to Mendenhall's habeas petition because the government had not received the complete state court file. The file was necessary to prepare a response. The district court did not abuse its discretion in granting such an extension of time. Clutchette v. Rushen, 770 F.2d 1469, 1474 (9th Cir. 1985). Mendenhall's allegation of collusion between the district court and the government is unfounded.

AFFIRMED.