Unpublished Disposition, 881 F.2d 1084 (9th Cir. 1987)

MEMORANDUM^* 

Appellant, Norris L. McAlmond, incarcerated in Montana State Prison pursuant to a state court judgment and sentence for 35 years for sexual intercourse without consent, deviate sexual conduct and bail jumping, appeals the district court's order denying his 28 U.S.C. § 2254 habeas corpus petition.

In 1979, appellant was charged by information in the State of Montana with sexual intercourse without consent and engaging in deviant sexual relations with his stepchildren, an eleven year old boy and an eight year old girl, as well as another young girl. Appellant was released on bail but did not appear for trial; he was apprehended in the summer of 1981.

At the time of the offenses appellant was married to Irma McAlmond. Irma McAlmond notified the law enforcement agency about the appellant's sexual activities with her children and also gave the law enforcement officers a cassette tape with recordings of four to six separate episodes of sexual activities between the appellant and the young victims.

Based on an affidavit by Irma McAlmond and the cassette tape, the law enforcement officers applied for a search warrant directing the search of the appellant's residence and truck for pornographic materials consisting of cassette tapes and photographs depicting the sexual activities of the appellant with the victims. There is no record that the search warrant was ever issued; nevertheless, the pornographic material described in the application for a search warrant was seized.

On October 26, 1981, appellant appeared in court, represented by counsel, and entered pleas of guilty to two counts of the amended six count information and entered a plea of guilty to the bail jumping charge. In this hearing, appellant stated

[a]fter I reviewed the evidence ... I am convinced that I, indeed, did do this thing [have sexual intercourse with the person named in Count I] and it did take place; and after I reviewed the evidence; I have to admit [to having deviate sexual relations with the person named in Count V], it must be true.

The judge asked, " [a]fter reviewing the evidence, you're convinced, Mr. McAlmond, are you that if the jury considered it, they would likely find you guilty of Counts I and V?" The appellant answered, "that's the reason I pled it." The appellant was also asked " [a]nd is one of the considerations of your entering a plea in this case the fact that the victims in these cases--you desire not to put these victims through anymore hassle than they have already gone through"; and he answered, "I would say that's my biggest reason." The appellant was sentenced to thirty years on the two sexual offense charges and five years on the bail jumping charge.

Appellant filed a petition for post-conviction relief in Montana Supreme Court which was denied. Thereafter, appellant filed this habeas corpus petition, listing the same grounds raised in his state petition in district court. On August 14, 1986, the magistrate recommended the petition be denied on all grounds. On July 9, 1987, the district judge approved the magistrate's recommendation except for the appellant's claim of ineffective assistance of counsel.

Pursuant to the district court's order of July 9, 1987, the magistrate conducted an evidentiary hearing to determine "whether appellant was denied effective assistance of counsel by [counsel's] failure to move for suppression of evidence" including the cassette tape and the pornographic material seized from his truck and residence.

Based upon the evidentiary hearing, the magistrate found that the appellant had received effective assistance and recommended that his petition for writ of habeas corpus be denied. Appellant objected to the magistrate's findings; the district court reviewed de novo the parties' written submissions, the record of the state court proceeding, and the transcript of the evidentiary hearing before the magistrate, and denied the petition. The district court concluded that the

[P]etitioner and his counsel made a tactical decision not to seek suppression of the evidence. Additionally, even if the tapes were subject to suppression, petitioner himself testified that his plea of guilty was based upon his desire to protect his stepchildren from the ordeal of trial. The tape recording, as petitioner and his counsel recognized early in the case, was not the sum and substance of the prosecution's evidence, and was not the sole motivating factor in petitioner's decision to plead guilty.

DISCUSSION

This court reviews the factual findings of the district court in a 28 U.S.C. § 2254 action under the "clearly erroneous" standard; legal conclusions are reviewed de novo. Stewart v. Corbin, 850 F.2d 492, 496 (9th Cir. 1988).

To prevail on an ineffective assistance of counsel claim, the appellant must demonstrate that his attorney's performance fell below an objective standard of reasonableness, and that, as a result of this substandard performance, the appellant suffered prejudice. Strickland v. Washington, 466 U.S. 668 (1984). This two part test "applies to challenges to guilty pleas based on ineffective assistance of counsel." Hill v. Lockhart, 474 U.S. 52, 58 (1985). The prejudice requirement "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words ... the defendant must show that there is a reasonable probability that, but for counsel's error, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59; see Agtas v. Whitley, 836 F.2d 1233, 1235 (9th Cir. 1988) (per curiam).

Appellant asserts that the cassette tape was taken by his wife without his consent and delivered to the law enforcement officers. Under Montana law in 1981, the prohibitions of unreasonable search and seizure applied to private citizens, State v. Brecht, 157 Mont. 264, 485 P.2d 47, 51 (1971), overruled, State v. Long, 216 Mont. 65, 700 P.2d 153, 155-57 (1985); therefore, appellant argues that counsel erred by not seeking to suppress the cassette tape. Since a search warrant was never obtained, the appellant contends that the other seized pornographic material was also suppressible.

The appellant maintains that he entered his pleas of guilty because he believed the tape and other pornographic material would be used against him during trial. Because his counsel made no effort to suppress this evidence or to inform him that the evidence was suppressible, the appellant claims he was denied the effective assistance of counsel. We disagree.

Assuming, without deciding, that the evidence was indeed suppressible, the appellant and his counsel made a sound tactical decision not to seek to suppress the evidence. Counsel was concerned that the evidence, even if suppressed, would be considered at the sentencing hearing. Counsel sought to keep the prejudicial evidence away from the judge who would eventually sentence the appellant. Accordingly, counsel made a reasonable tactical decision not to suppress the evidence in an effort to reduce the appellant's exposure to a more severe sentence.

Appellant's contention that he would not have entered the pleas of guilty had the evidence been suppressed is without merit. The appellant himself testified that his pleas of guilty were primarily based upon his desire to protect his stepchildren from the ordeal of trial. The appellant's attorney interviewed the young victims and concluded that their testimony was credible. The prosecution was prepared to use the testimony of the victims and would have done so if the evidence had been suppressed. The record supports the conclusion that the appellant would have entered the guilty pleas even if the evidence had been suppressed. Accordingly, the appellant has not shown that, but for counsel's error, he would not have pleaded guilty and would have insisted on going to trial.

AFFIRMED.