Edwyn O. Hector v. States of California, No. 5:2009cv00591 - Document 23 (C.D. Cal. 2009)

Court Description: OPINION AND ORDER by Magistrate Judge Rosalyn M. Chapman; See order for details. (jy)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 EDWYN O. HECTOR, aka EDWYN ONGLEY HECTOR, aka EDWYN OMAR HECTOR, 13 Petitioner, 14 vs. 15 M.E. POULOS, WARDEN, 16 Respondent. ) Case No. EDCV 09-0591-RC ) ) ) ) ) ) OPINION AND ORDER ) ) ) ) ) 17 18 On March 25, 2009, petitioner Edwyn O. Hector, aka Edwyn Ongley 19 Hector, aka Edwyn Omar Hector, proceeding pro se, filed his initial 20 habeas corpus petition under 28 U.S.C. § 2254, and on March 27, 2009, 21 the Court determined petitioner had failed to name the proper 22 respondent and failed to sign and verify his petition, as required by 23 Rules 2(a) and (c) of the Rules Governing Section 2254 Cases in the 24 United States District Court, and dismissed the petition with leave to 25 amend. 26 petition, and on April 22, 2009, petitioner filed a supporting 27 memorandum of points and authorities with numerous exhibits. 28 April 9, 2009, petitioner also filed a motion to stay and hold in On April 9, 2009, petitioner filed an amended habeas corpus On 1 abeyance the amended petition, and this Court denied that motion on 2 April 10, 2009, finding petitioner had failed to identify any new 3 claims he wanted to exhaust. 4 answer to the amended petition, and on July 27, 2009, petitioner filed 5 his reply. On June 9, 2009, respondent filed an 6 7 In the amended habeas corpus petition, petitioner raises the 8 claims that defense counsel was ineffective for: (1) not challenging 9 relevant omissions and misstatements in the affidavit for search 10 warrant ; and (2) not challenging the face of the search warrant as 11 being general and lacking particularity. 1 Amended Petition at 5. 12 13 BACKGROUND 14 On June 28, 2006, in Riverside County Superior Court case no. 15 BAF004751, the People filed an information charging petitioner with 16 one count of being a felon in possession of a firearm in violation of 17 California Penal Code ( P.C. ) § 12021(a)(1) (count 1), one count of 18 wilfully and unlawfully possessing a short barrel twelve gauge shotgun 19 in violation of P.C. § 12020(a)(1) (count 2), and one count of being a 20 felon in possession of ammunition in violation of P.C. § 12316(b)(1) 21 (count 3),2 and further charging petitioner with two prior strikes 22 1 23 24 25 26 27 28 The petitioner has exhausted his claims in the state courts, Lodgment nos. 10-15, as respondent acknowledges. See Answer at III. 2 The petitioner was not charged with the robberies that took place in Beaumont on March 12, 2006, in Calimesa and Redlands on March 13, 2006, and in Calimesa on March 16, 2006, which were the crimes underlying the search warrant authorizing the search of petitioner s home that uncovered the firearms and ammunition petitioner was charged with illegally possessing. See 2 1 under California s Three Strikes law, P.C. §§ 667(c), (e)(2)(A) and 2 1170.12(c)(2)(A). 3 plea agreement, petitioner pleaded guilty to, and was convicted of, 4 all three counts, and petitioner admitted the two prior strikes. 5 123-26; Reporter s Transcript ( RT ) 50:6-52:18. 6 the trial court struck one of petitioner s prior strikes, and 7 sentenced petitioner to the total term of eight years and eight months 8 in state prison. CT 42-43. On May 3, 2007, pursuant to a written CT On June 19, 2007, CT 165-68; RT 53:3-72:8. 9 10 The petitioner appealed his sentence to the California Court of 11 Appeal,3 CT 169, which, in an unpublished opinion filed April 18, 2008 12 and modified on May 12, 2008, remanded the matter to the trial court 13 for resentencing, finding the imposition of sentence on count 2 must 14 be stayed under P.C. § 654, and in all other respects affirmed the 15 Judgment. 16 from the California Supreme Court. Lodgment nos. 3-9, 16. The petitioner did not seek review Amended Petition at 3. 17 18 On August 25, 2008, the trial court resentenced petitioner to 19 seven years and four months in state prison. Lodgments A at 2, 5-6; 20 Lodgments B-D. 21 California Court of Appeal, Lodgment A at 4, 7; however, the appeal 22 was dismissed at petitioner s request on March 16, 2009. 23 H. The petitioner appealed the resentencing to the Lodgments F- 24 25 26 27 28 Clerk s Transcript ( CT ) 67-76. 3 On appeal, petitioner claimed his sentence was improper, but did not challenge the trial court s refusal to quash the warrant issued to search his home or to suppress the evidence seized under the warrant. See Lodgment nos. 3-7. 3 1 DISCUSSION 2 I 3 The Antiterrorism and Effective Death Penalty Act of 1996 4 ( AEDPA ) circumscribes a federal habeas court s review of a state 5 court decision. 6 123 S. Ct. 1166, 1172, 155 L. Ed. 2d 144 (2003); Wiggins v. Smith, 7 539 U.S. 510, 520, 123 S. Ct. 2527, 2534, 156 L. Ed. 2d 471 (2003). 8 As amended by AEDPA, 28 U.S.C. § 2254(d) provides: Lockyer v. Andrade, 538 U.S. 63, 70, 9 10 An application for a writ of habeas corpus on behalf of a 11 person in custody pursuant to the judgment of a State court 12 shall not be granted with respect to any claim that was 13 adjudicated on the merits in State court proceedings unless 14 the adjudication of the claim - [¶] (1) resulted in a 15 decision that was contrary to, or involved an unreasonable 16 application of, clearly established Federal law, as 17 determined by the Supreme Court of the United States; or [¶] 18 (2) resulted in a decision that was based on an unreasonable 19 determination of the facts in light of the evidence 20 presented in the State court proceeding. 21 22 28 U.S.C. § 2254(d). Further, under AEDPA, a federal court shall 23 presume a state court s determination of factual issues is correct, 24 and the petitioner has the burden of rebutting this presumption by 25 clear and convincing evidence. 28 U.S.C. § 2254(e)(1). 26 27 28 The California Supreme Court reached the merits of petitioner s claims when it denied his habeas corpus petition without comment or 4 1 citation to authority. 2 Cir. 2005), amended by, 447 F.3d 1165 (9th Cir. 2006), cert. denied, 3 549 U.S. 1134 (2007). 4 decision addressing the merits of petitioner s claims, this Court must 5 conduct an independent review of the record to determine whether 6 the California Supreme Court s decision to deny the claim was contrary 7 to, or an unreasonable application of, clearly established federal 8 law. 9 (citation omitted); Medley v. Runnels, 506 F.3d 857, 863 n.3 (9th Cir. 10 Gaston v. Palmer, 417 F.3d 1030, 1038 (9th Since no state court has provided a reasoned Musladin v. Lamarque, 555 F.3d 830, 835 (9th Cir. 2009) 2007) (en banc), cert. denied, 128 S.Ct. 1878 (2008). 11 12 13 II When a criminal defendant has solemnly admitted in open court 14 that he is in fact guilty of the offense with which he is charged, he 15 may not thereafter raise independent claims relating to the 16 deprivation of constitutional rights that occurred prior to the entry 17 of the guilty plea. 18 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235 (1973); United States v. Broce, 19 488 U.S. 563, 574, 109 S. Ct 757, 765, 102 L. Ed. 2d 927 (1989); 20 Haring v. Prosise, 462 U.S. 306, 319-20, 103 S. Ct. 2368, 2376, 21 76 L. Ed. 2d 595 (1983). 22 a guilty plea represents a break in the chain of events which has 23 preceded it in the criminal process. 24 93 S.Ct. at 1608; Haring, 462 U.S. at 321, 103 S. Ct. at 2377. 25 defendant who pleads guilty is convicted and sentenced according to 26 his plea and not upon the evidence. 27 397 U.S. 742, 750, 90 S. Ct. 1463, 1470, 25 L. Ed. 2d 747 (1970). 28 pleading guilty, the defendant admits he committed the charged Tollett v. Henderson, 411 U.S. 258, 267, The principle behind this doctrine is that 5 Tollett, 411 U.S. at 267, A Brady v. United States, By 1 offense, and all that remains for disposition of the case is 2 imposition of the sentence and entry of the judgment. 3 v. Alford, 400 U.S. 25, 32, 91 S. Ct. 160, 164, 27 L. Ed. 2d 162 4 (1970). 5 guilty plea are whether the plea was voluntary, the defendant received 6 ineffective assistance of counsel in deciding to plead guilty, or a 7 jurisdictional defect precluded the Government s power to prosecute. 8 See, e.g., Broce, 488 U.S. at 569, 109 S. Ct. at 762; Hill v. 9 Lockhart, 474 U.S. 52, 56, 106 S. Ct. 366, 369, 88 L. Ed. 2d 203 10 (1985); Menna v. New York, 423 U.S. 61, 62, 96 S. Ct. 241, 242, 11 46 L. Ed. 2d 195 (1975) (per curiam); Blackledge v. Perry, 12 417 U.S. 21, 30, 94 S. Ct. 2098, 2103, 40 L. Ed. 2d 628 (1974). North Carolina Accordingly, almost the only pre-plea challenges to survive a 13 14 Here, petitioner does not challenge his guilty plea, but claims 15 he was denied his constitutional right to effective assistance of 16 counsel because his trial counsel did not challenge the search 17 warrant. 18 See Answer at 11:18-14:4. 19 uncertainty whether a claim of ineffective assistance of counsel 20 relating to a pre-plea motion to suppress evidence survives a guilty 21 plea. 22 appellate courts opinions, hold Tollett bars such claims. 23 Moran v. Godinez, 57 F.3d 690, 700 (9th Cir. 1994), cert. denied, 24 516 U.S. 976 (1995) ( [Petitioner s] contention that his attorneys 25 were ineffective because they failed to attempt to prevent the use of 26 his confession is the assertion of an alleged pre-plea constitutional 27 violation[,] . . . [which the court] will not consider . . . in this 28 habeas appeal. ); United States v. Bohn, 956 F.2d 208, 209 (9th Cir. The respondent contends this claim is barred under Tollett. However, despite Tollett, there is some On the one hand, some Ninth Circuit opinions, as well as other 6 See, e.g., 1 1992) (per curiam) (defendant s guilty plea waived his pre-plea 2 ineffective assistance of counsel claim); United States v. Ramos, 3 275 Fed. Appx. 581, 582-83 (9th Cir. 2008) (by pleading guilty, 4 defendant waived his claim that trial counsel rendered ineffective 5 assistance on his suppression motion under Tollett);4 United States v. 6 Friedlander, 217 Fed. Appx. 664, 665 (9th Cir. 2007) (when defendant 7 pled guilty, he waived pre-plea claim that his trial counsel was 8 ineffective in her preparation and submission of two suppression 9 motions); United States v. Torres, 129 F.3d 710, 715-16 (2d Cir. 1997) 10 (declining, under Tollett, to address whether defense counsel was 11 constitutionally ineffective by failing to interview and call certain 12 witnesses at a pretrial suppression hearing ). 13 Ninth Circuit has, at times, considered a habeas petitioner s 14 ineffective assistance of counsel claim regarding a pre-plea 15 suppression motion. 16 2231650, *10 n.14 (9th Cir. (Or.)) ( [Petitioner s] challenge is not 17 to counsel s plea advice, . . . but to counsel s failure to file a 18 motion to suppress. 19 a valid Strickland[5] claim clearly recognized by the Supreme Court in 20 Kimmelman.[6] 21 Strickland claims ever since Kimmelman was decided more than twenty 22 years ago, and we have done so in cases in which the defendant pled 23 rather than going to trial[.] (citations omitted; footnotes added)), On the other hand, the See, e.g., Moore v. Czerniak, __ F.3d __, 2009 WL This challenge to the failure to file a motion is We have repeatedly recognized such Kimmelman-type 24 25 4 26 5 27 See Fed. R. App. P. 32.1(a); Ninth Circuit Rule 36-3(b). Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) 6 28 Kimmelman v. Morrison, 477 U.S. 365, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986). 7 1 *20 ( It is likely that, but for counsel s failure to file a 2 suppression motion, [petitioner] would have not entered into the plea 3 agreement that required him to plead no contest to a felony murder 4 charge with a severe mandatory . . . sentence. . . . ); id. at *29 5 (Berzon, J., concurring) (Tollett did not deal with circumstances in 6 which the asserted pre-plea constitutional violation was ineffective 7 assistance of counsel with regard to pre-trial practice, as opposed to 8 constitutional violations by the court or the prosecution. 9 latter variety of pre-plea constitutional violation, we assume that As to the 10 the petitioner had effective assistance of counsel in determining 11 whether or not to challenge those violations in a timely manner, and 12 so consider any such challenge waived as part of the guilty plea. 13 (emphasis in original)); Weaver v. Palmateer, 455 F.3d 958, 972 (9th 14 Cir. 2006) (addressing merits of ineffective assistance claim that 15 counsel was constitutionally deficient because of his failure to file 16 a motion to exclude the lineup identifications prior to [petitioner s] 17 entry of the guilty plea ), cert. denied, 128 S. Ct. 177 (2007); 18 Langford v. Day, 110 F.3d 1380, 1386-88 (9th Cir. 1996) (addressing 19 merits of ineffective assistance claim based on, among other grounds, 20 attorney s pre-plea failure to explore suppression of confession, and 21 stating here the focus is not on an attorney s advice to plead 22 guilty; it is on [defense counsel s] investigation of the case and 23 advice regarding possible defenses ), cert. denied, 522 U.S. 881 24 (1997). 25 ineffective assistance of counsel claim. Given this uncertainty, the Court will address petitioner s 26 27 28 To succeed on a claim of ineffective assistance of trial counsel, a habeas petitioner must demonstrate his attorney s performance was 8 1 deficient and the deficient performance prejudiced him. Rompilla v. 2 Beard, 545 U.S. 374, 380, 125 S. Ct. 2456, 2462, 162 L. Ed. 2d 360 3 (2005); Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. 4 petitioner bears the burden of establishing both components. 5 v. Taylor, 529 U.S. 362, 390-91, 120 S. Ct. 1495, 1511-12, 6 146 L. Ed. 2d 389 (2000); Smith v. Robbins, 528 U.S. 259, 285-86, 7 120 S. Ct. 746, 764, 145 L. Ed. 2d 746 (2000). 8 is performance which is objectively unreasonable under prevailing 9 professional norms. The Williams Deficient performance Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 10 1990) (citing Strickland, 466 U.S. at 688, 104 S. Ct. at 2064). 11 Prejudice focuses on the question whether counsel s deficient 12 performance renders the results . . . unreliable or the proceeding 13 fundamentally unfair. 14 113 S. Ct. 838, 844, 122 L. Ed. 2d 180 (1993); Williams, 529 U.S. at 15 393 n.17, 120 S. Ct. at 1513 n.17. 16 determine whether counsel s performance was deficient before 17 determining whether the defendant suffered prejudice as the result of 18 the alleged deficiencies. 19 at 2069 ( If it is easier to dispose of an ineffectiveness claim on 20 the ground of lack of sufficient prejudice, . . . that course should 21 be followed. ); Smith, 528 U.S. at 286 n.14, 120 S. Ct. at 764 n.14 22 (same). Lockhart v. Fretwell, 506 U.S. 364, 372, However, the Court need not See Strickland, 466 U.S. at 697, 104 S. Ct. 23 24 The record shows the following facts underlying petitioner s 25 ineffective assistance of counsel claim: 26 County Superior Court Judge Rodney Walker issued Search Warrant 27 #200618, and the execution of that warrant led to the seizure of the 28 evidence against petitioner and his arrest on or about March 20, 2006. 9 On March 17, 2006, Riverside 1 CT 56, 72-75. On September 11, 2006, petitioner s then-defense 2 attorney, Deputy Public Defender Brian King, filed a notice of motion 3 and motion to traverse and quash the search warrant, and to suppress 4 the seized evidence under P.C. § 1538.5, on the ground inter alia that 5 the affiant either intentionally or was grossly negligent in omitting 6 facts necessary for the issuing Magistrate in determining the 7 existence of probable cause for the authorization and issuance of the 8 search warrant. 7 9 opposition to the motion, CT 83-86, and on October 13, 2006, Judge CT 50-79. On October 10, 2006, the People filed an 10 Walker heard the testimony of Sheriff s Deputy Kenneth Allen 11 Patterson, whose affidavit supported the issuance of the search 12 warrant. 13 the hearing on the motion to quash to October 20, 2006, so defense 14 counsel could present Anguiano as a witness. 15 2006, the trial court heard the testimony of Anguiano, RT 28:28-31:16, 16 who stated that when shown a field line-up of robbery suspects, he 17 couldn t really tell if [petitioner] was [the robber] or not[,] and 18 he told the sheriff s deputy, I wasn t sure that it was him. 19 could ve been him . . . [b]ut I wasn t sure. . . . 20 robbed me seemed like he was a little younger [than petitioner]. 21 I wasn t sure because he was wearing a hat. 22 added). 23 and to suppress the evidence, stating: See CT 64-70; RT 1:5-25:26. The trial court then continued CT 89. On October 20, It [T]he guy that RT 30:10-21 (emphasis The trial court then denied the motion to quash the warrant 24 25 26 27 28 But 7 More specifically, defense counsel claimed Juan Anguiano, one of the victim/witnesses of the robberies set forth in the probable cause affidavit for the search warrant, could not identify petitioner as the robber, and this information was intentionally excluded from the affidavit supporting the search warrant. CT 50-79; see also footnote 1 above. 10 1 After listening to the testimony of Mr. Anguiano here today, 2 it is pretty clear to me that . . . had Officer Patterson 3 told me [in his affidavit] that Mr. Anguiano had been 4 brought to an in-field show up and had been unable to either 5 positively identify the suspect or positively cut him loose 6 or at least eliminate him as a suspect that it wouldn t have 7 made much difference one way or the other. 8 weighed the application and affidavit on all its other 9 particulars. I would ve In having heard the testimony here today it s 10 my opinion that the motion to quash and/or traverse has to 11 be denied and it is. 12 13 RT 33:12-23. 14 15 On November 7, 2006, attorney Parwana Anwar substituted in as 16 petitioner s counsel, CT 92, and on February 7, 2007, Anwar filed a 17 second motion to traverse and quash the search warrant, and to 18 suppress evidence under P.C. § 1538.5, the Fourth and Fourteenth 19 Amendments, and Article I, Section 13 of the California Constitution, 20 arguing inter alia that the affiant intentionally mislead or omitted 21 facts necessary for the issuing Magistrate in determining th existence 22 of probable cause for the issuance of a search warrant. 23 Specifically, Anwar argued the affiant intentionally or recklessly 24 omitted the following facts from the probable cause affidavit: 25 although the affiant stated that [petitioner] matched the description 26 given by Anguiano, Anguiano described the perpetrator as having no 27 facial hair, while petitioner had a goatee and mustache; (2) the 28 affiant included in his affidavit that an individual observed a 11 CT 96-108. (1) 1 subject run from the direction of the Shell Gas Station after the 2 robbery and get into a 2002-2004 Chevrolet Corvette, black or dark 3 grey in color with a hardtop and provides this matching description 4 and recovery of the Chevrolet Corvette owned by [petitioner] . . . as 5 a basis for the issuance of the warrant ; however, the individual 6 described the suspect as wearing a white shirt, black jacket, and 7 black pants, while Anguiano described the suspect as wearing a red 8 and white striped shirt, light blue and gray checkered Bermuda style 9 shorts, and a white golf style hat and petitioner owned a 10 convertible Corvette rather than a hardtop; and (3) the affiant noted 11 in his affidavit that Deputy Berryman detected the strong odor of an 12 alcoholic beverage coming from the interior of [petitioner s] 13 vehicle[;] however[,] no beer cans or alcohol containers were found 14 inside[,] and, even though petitioner had an open bottle of orange 15 juice mixed with Hennessey inside his vehicle that was removed by the 16 deputies[,] [t]his was never mentioned . . . in [the] affidavit for 17 the search warrant. CT 101-02. 18 19 On February 23, 2007, the trial court granted Anwar s motion to 20 withdraw as petitioner s attorney, allowed Eric Isaac to substitute in 21 as counsel, and continued the hearing on the motion to quash the 22 search warrant. 23 People filed an opposition to the motion to quash, CT 113-19, and on 24 March 23, 2007, the trial court granted petitioner s request to 25 continue the suppression hearing so his new counsel could supplement 26 the motion to quash. 27 supplemental motion to traverse and quash the search warrant, and to 28 suppress evidence under P.C. § 1538.5, arguing there was not enough CT 111-12; RT 35:4-38:5. CT 120. On March 22, 2007, the On April 4, 2007, Isaac filed a 12 1 credible evidence to justify Detective Patterson s request for the 2 issuance of the warrant in that Anguiano described the suspect as 3 having no facial hair, while petitioner had a full grown mustache and 4 a full grown devil s point (hair under his lip) when arrested. 5 Lodgment no. 16, Exh. A. 6 hearing on the motion to quash, and denied the motion, stating that 7 those factors [identified in both motions to quash] are not 8 significant enough . . . to cause me to feel any differently about the 9 probable cause that I believe existed in the affidavit in support of 10 the warrant. On April 20, 2007, Judge Walker held a CT 122; RT 39:3-47:13. 11 12 13 Here, in Ground One, petitioner claims he was deprived effective assistance of counsel because: 14 15 a reasonable attorney would have elicited all arguments for 16 suppressing in his written motion and at the [first] 17 hearing. 18 not identify petitioner as the robber and stated he believed 19 petitioner looked younger, especially after indicating he 20 would definitely be able to recognize the robber, were 21 material. Of course, petitioner s age of 45 similarly was 22 material. Likewise, . . . the fact petitioner s car was a 23 convertible, rather than a hardtop as explicitly described 24 by [a witness] who reported seeing a person leaving the area 25 of the most recent robbery in a hardtop Corvette, and 26 petitioner had facial hair while the robber had no facial 27 hair, are material. 28 witness ] description of a person with completely different As established below, the fact the victim could Further, the central fact that [the 13 1 clothing than the robber was material to the significance of 2 the black hardtop [C]orvette. 3 the court at the suppression hearing. Such facts were not argued to 4 5 Petitioner s Memorandum of Points and Authorities ( Memo. ) at 4-5. 6 In essence, petitioner claims ineffective assistance of counsel 7 because King, his initial defense counsel, did not raise in the first 8 suppression motion all of the arguments defense attorneys Anwar and 9 Isaac raised in the second suppression motion. The petitioner, 10 however, cannot escape the fact that all the arguments petitioner 11 identifies were raised by one or another of his defense attorneys, and 12 Judge Walker rejected all of them. 13 33:23, 39:3-47:13; Lodgment no. 16, Exh. A. 14 show any prejudice, see Bailey v. Newland, 263 F.3d 1022, 1029 (9th 15 Cir. 2001) ( [I]n order to show prejudice when a suppression issue 16 provides the basis for an ineffectiveness claim, the petitioner must 17 show that he would have prevailed on the suppression motion, and that 18 there is a reasonable probability that the successful motion would 19 have affected the outcome. (citations omitted)), cert. denied, 20 535 U.S. 995 (2002), and his ineffective assistance of counsel claim 21 is without merit. 22 Cir. 2003); Bailey, 263 F.3d at 1029. CT 50-79, 96-108, 122; RT 1:5Thus, petitioner cannot Ortiz-Sandoval v. Clarke, 323 F.3d 1165, 1170 (9th 23 24 The petitioner also claims his trial counsel was ineffective in 25 not seeking to suppress the shotgun found during the search of his 26 residence on the ground that the search warrant was overbroad, 27 allowing the search for [a]ny and all firearms rather than a 28 handgun, which is what the robbery suspect was described as carrying. 14 1 Memo. at 16-19. This claim is without merit for numerous reasons. 2 First, Detective Patterson s affidavit did not state a handgun was the 3 weapon used in all the robberies. 4 Calimesa robbery, the affidavit stated that the suspect appeared to 5 be gripping the handle of a gun, however [Anguiano] never saw the 6 weapon[.] 7 petitioner told Detective Patterson there was a shotgun in his house, 8 CT 23:15-18, and Detective Patterson was aware petitioner was a 9 convicted felon, CT 89, 157-58, who was prohibited from possessing a CT 67, 69. Rather, regarding the second More importantly, prior to the search, 10 firearm. In any event, Detective Patterson testified at the 11 preliminary hearing that the shotgun was in plain view on the living 12 room floor next to the couch[,] in between the coffee table and 13 couch[,] CT 24:10-25:2, and the shotgun could properly be seized 14 under such circumstances.8 15 142, 110 S. Ct. 2301, 2310-11, 110 L. Ed. 2d 112 (1990) (where search 16 lawfully performed under warrant, Fourth Amendment permitted seizure 17 of contraband item in plain view). 18 attempt by defense counsel to suppress the shotgun based on the scope 19 of the warrant would have been futile, and the failure to take a 20 futile action can never be deficient performance. 21 93 F.3d 1434, 1444-45 (9th Cir. 1996), cert. denied, 519 U.S. 1142 22 (1997); see also Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir.) (counsel See Hudson v. California, 496 U.S. 128, Given these circumstances, any Rupe v. Wood, 23 8 24 25 26 27 28 Petitioner also complains the warrant was insufficiently particular since it allowed seizure of [a]ny evidence that would lead officers to believe another crime has been committed. . . . CT 72-73. However, since the shotgun was otherwise properly seized, the Court need not address this contention. See United States v. Washington, 797 F.2d 1461, 1473 (9th Cir. 1986) ( Any articles seized pursuant to valid portions of the warrant need not be suppressed. ); People v. Camarella, 54 Cal. 3d 592, 607 n.7, 286 Cal. Rptr. 780, 789 n.7 (1991) (same). 15 1 is not obligated to raise frivolous motions, and failure to do so 2 cannot constitute ineffective assistance of counsel), cert. denied, 3 513 U.S. 1001 (1994). 4 5 Thus, petitioner s ineffective assistance of counsel claim is 6 without merit, and the California Supreme Court s denial of the claim 7 was neither contrary to, nor an unreasonable application of, clearly 8 established federal law. 9 10 ORDER 11 IT THEREFORE IS ORDERED that Judgment be entered denying the 12 petition and dismissing the action with prejudice. 13 14 DATE: August 17, 2009 15 /S/ ROSALYN M. CHAPMAN ROSALYN M. CHAPMAN UNITED STATES MAGISTRATE JUDGE 16 R&R\09-0591.R&R 17 8/17/09 18 19 20 21 22 23 24 25 26 27 28 16

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