Unpublished Disposition, 865 F.2d 265 (9th Cir. 1985)

MEMORANDUM^** 

Petitioner appeals from the district court's denial of his habeas petition. He contends the district court erred by not appointing counsel to assist him and by denying him a hearing on his motion to vacate or modify his sentence. We affirm.

BACKGROUND

On June 23, 1985 Michael Speer, a county deputy sheriff, was in a store on the Fort Peck Indian Reservation when a woman claimed that someone had just stolen her purse. Speer and the woman pursued the suspect who was eventually apprehended by a private citizen. When the woman identified the petitioner as the thief, Speer told the petitioner he was under arrest and turned him over to a federal officer. Petitioner was charged with robbery.

Petitioner pleaded guilty on advice of counsel, but thereafter petitioned pro se for a writ of habeas corpus, moving for an appointment of counsel and seeking to vacate or modify his sentence. The district court denied petitioner's requests without a hearing.

DISCUSSION

Under 28 U.S.C. § 2255 (1982) the district court must hold an evidentiary hearing if petitioner "has made specific factual allegations that, if true, state a claim on which relief could be granted." United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984), cert. denied, 470 U.S. 1058 (1985). Petitioner here alleges that his arrest was unlawful because the deputy had no authority to arrest him on the reservation. We conclude, however, that petitioner may not collaterally attack the legality of his arrest.

A guilty plea, if made voluntarily and intelligently, waives any pre-plea constitutional violations. Hudson v. Moran, 760 F.2d 1027, 1029-30 (9th Cir. 1985), cert. denied, 474 U.S. 981 (1985). Thus, to challenge his arrest, petitioner must first "attack the voluntary and intelligent character of the guilty plea." Tollet v. Henderson, 411 U.S. 258, 267 (1973). He may do so by showing that his attorney's advice to plead guilty "was not 'within the range of competence demanded of attorneys in criminal cases.' " Hudson, 760 F.2d at 1030 (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). To succeed on this claim of ineffective assistance of counsel, petitioner must show that his attorney's representation fell below an objective standard of reasonableness and that he suffered actual prejudice. Strickland v. Washington, 466 U.S. 668, 688, 692 (1984); Eggleston v. United States, 798 F.2d 374, 376 (9th Cir. 1986).

We conclude that petitioner's counsel rightfully refused to raise the arrest issue. A private citizen, acting in good faith, may lawfully arrest a person if a felony was actually committed and the citizen reasonably believed that the person arrested did it. See M.C.A. Sec. 46-6-502(2); State v. McDole, 734 P.2d 683, 685 (Mont.1987); see also Ward v. United States, 316 F.2d 113, 117 (9th Cir. 1963), cert. denied, 375 U.S. 862 (1963). Speer, acting as a private citizen, arrested petitioner for robbery, a felony offense. Speer had several reasons to believe that petitioner committed the crime: petitioner fled from Speer, the purse was located near where petitioner was apprehended, and the victim identified the petitioner as the thief.

Moreover, even if the arrest was unlawful, petitioner was not prejudiced by his counsel's decision not to pursue that claim. Generally, evidence seized as a result of an unlawful arrest is suppressible. I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1040 (1984). A person's identity, however, is never suppressible as fruit of an unlawful arrest. Id. at 1039. Here, there was no evidence seized other than petitioner's identity.

We conclude, therefore, that petitioner has not demonstrated ineffective assistance of counsel. Consequently, he may not attack his guilty plea to raise the pre-plea constitutional claim of unlawful arrest. No hearing was required to establish that petitioner was not entitled to the relief sought in his habeas petition. See Schaflander, 743 F.2d at 717. Since an evidentiary hearing was unnecessary, the decision to appoint counsel was within the discretion of the district court. See Terrovona v. Kincheloe, 852 F.2d 424, 429 (9th Cir. 1988). We find no abuse of that discretion here. Thus, we affirm the district court's denial of petitioner's motion for appointment of counsel and denial without hearing of his request to modify or vacate his sentence.

AFFIRMED.