Unpublished Disposition, 925 F.2d 1471 (9th Cir. 1991)

MEMORANDUM^** 

Bobby Henry Brown appeals the district court's denial of his federal habeas corpus petition filed pursuant to 28 U.S.C. § 2255. Brown's petition alleges three grounds: (1) a Brady violation; (2) a defective search warrant; and (3) ineffective assistance of counsel. We have jurisdiction over Brown's timely appeal under 28 U.S.C. § 1291, and we affirm.

At trial, a government informant named John Torrino testified against Brown. Brown claims that the prosecution's failure to inform him of Torrino's prior state misdemeanor conviction deprived him of exculpatory impeachment evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). We review such a claim de novo. United States v. Kennedy, 890 F.2d 1056, 1058 (9th Cir. 1989), cert. denied, 110 S. Ct. 1308 (1990).

Without addressing the materiality of this allegedly withheld evidence, we find that there was no Brady violation because the government was not aware of Torrino's prior conviction. This Circuit has adopted the perfectly reasonable position that the government is not required to inform the defendant of potentially exculpatory information which it does not possess or of which it is unaware. United States v. Goldberg, 582 F.2d 483, 490 (9th Cir. 1978), cert. denied, 440 U.S. 973 (1979); see also United States v. Chen, 754 F.2d 817, 824 (9th Cir.), cert. denied, 471 U.S. 1139 (1985). Here, the government had no knowledge of Torrino's prior conviction, which was not listed in the FBI's informant file, and which Torrino sustained while using a different last name. There was no Brady violation in this case.

Brown next claims that a defective search warrant was used to obtain some of the evidence presented against him at trial. He argues that the government introduced a second, non-defective warrant at trial. Brown does not contest the validity of the "second" search warrant.

The district court found that the search warrant introduced at trial was the same warrant used to obtain the evidence admitted against Brown; it found, that is, that there was only one search warrant. We review a district court's factual findings for clear error. Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989). Brown has offered nothing to support his bare assertion that there were two warrants, and he has thus failed to proved that the district judge clearly erred.

Brown lastly contends that he received ineffective assistance of counsel due to his attorney's failure: (1) to challenge the allegedly defective search warrant; (2) to raise a double jeopardy argument against his prosecution; and (3) to raise an issue regarding his plea to a prior marijuana charge, which he alleges was induced by a prosecutor's representation that no other charges were pending against him. We review these claims de novo. United States v. Murray, 751 F.2d 1528, 1535 (9th Cir.), cert. denied sub nom. Moore v. United States, 474 U.S. 979 (1985). In order to prevail on this claim, Brown must show that the alleged failures by counsel prejudiced him. Id.

As noted above, the defective warrant issue is simply unsupported by the record. The double jeopardy claim is likewise a non-starter. Brown argues that his immediate conviction on charges relating to the manufacture, possession and distribution of phencyclidine is barred by a previous conviction for importation of marijuana. Because the latter offense requires proof of an independent element--namely, the importation of a controlled substance--double jeopardy does not bar the present conviction. Blockburger v. United States, 284 U.S. 299, 304 (1932). Finally, Brown has presented no evidence to support his assertion that a prosecutor unfairly induced him to plead guilty on the prior marijuana charge.

Because each of the asserted grounds is without merit, we find that Brown was not prejudiced by his counsel's failure to raise them, and therefore that he was not denied the effective assistance of counsel.

The judgment of the district court is AFFIRMED.