Unpublished Disposition, 905 F.2d 1541 (9th Cir. 1990)

MEMORANDUM^*

David Oppelt timely appeals the district court's denial of his habeas corpus petition.¹  We have jurisdiction under 28 U.S.C. § 1291 (1982). We affirm.

We review de novo the denial of a habeas petition. Weygandt v. Ducharme, 774 F.2d 1491, 1492 (9th Cir. 1985).

* We reject Oppelt's argument that the district court erred in refusing to suppress evidence that a Heritage Inn security guard obtained from searching Oppelt in the Inn's parking lot. Because the security guard was employed by the Inn and not acting at the direction, or with the participation or knowledge of the police, the fourth amendment does not regulate his conduct. United States v. Jacobsen, 466 U.S. 109, 113 (1984).

II

We also reject Oppelt's argument that the amended information on which he was charged was constitutionally insufficient. Oppelt does not contend that the information failed to inform him of the offense for which he was charged in sufficient detail for him to prepare an adequate defense and plead double jeopardy in appropriate cases. These are the only sixth amendment requirements for a valid information. See Russell v. United States, 369 U.S. 749, 764-64 (1962); Miller v. Stagner, 757 F.2d 988, 994 (9th Cir. 1985), cert. denied, 475 U.S. 1048 (1986).

III

Contrary to Oppelt's contention, we find that sufficient evidence was introduced at trial to support the trial judge's instructions to the jury on common scheme and accountability. There was evidence that four vehicles were broken into on the same night. There was evidence that each of the vehicles was broken into through the wing window. There was evidence that articles stolen from one of the vehicles were found on Oppelt's person and articles stolen from two of the vehicles were found in a car that Oppelt had driven on the day of the break-ins. This was sufficient evidence to establish that Oppelt engaged in a common scheme--that is, committed a series of acts motivated by a common purpose or plan which resulted in the repeated commission of the same offense. See Mont.Code Ann. Sec. 45-2-101(7) (1989).

There was also evidence that Oppelt was acting in conjunction with his codefendant James Bradford. For example, there was evidence that they were together at the time of the break-ins, that at least two individuals were involved in the break-ins, that Bradford's and Oppelt's wallets were in the car containing the stolen goods, and that Bradford's fingerprints were inside one of the vehicles that was broken into. This is sufficient evidence of concerted action for the jury to have found that Oppelt aided Bradford in his commission of the crimes with the purpose of promoting or facilitating such commission and is therefore accountable for Bradford's conduct. Mont.Code Ann. Sec. 45-2-301, 302(3) (1989); State v. Hart, 625 P.2d 21, 30 (Mont.), cert. denied, 454 U.S. 827 (1981).

IV

Finally, we find that Oppelt's trial counsel was not ineffective.

Contrary to Oppelt's argument here, his counsel did move the district court to dismiss counts II through V against him for lack of jurisdiction. The district court properly denied the motion. These counts fell within the jurisdiction of the district court, as well as the justice court, because the counts involved misdemeanors arising at the same time and out of the same transaction as a charged felony. Mont.Code Ann. Sec. 3-5-302(2) (a). And Oppelt's counsel properly refrained from moving the district court to dismiss count VIII for lack of jurisdiction. This count also fell within the concurrent jurisdiction of the district court because it resulted from the reduction of a charged felony offense. Mont.Code Ann. Sec. 3-5-302(2) (b).² 

Contrary to Oppelt's argument here, his trial counsel did challenge the introduction of evidence that the Inn security guard found during his search of Oppelt. Counsel's failure to win suppression of this evidence was not due to deficient performance but rather, as discussed above, the absence of a fourth amendment violation.

And counsel's failure to introduce evidence that the value of the items found in the search of his person did not exceed $150 was reasonable in light of the fact that Oppelt was charged with stealing not just these items, but also the items found in his car. Oppelt does not contend that the aggregate value of all the items he was charged with stealing was less than $150.

V

Finally, we reject Oppelt's argument that the Montana Supreme Court's denial of his state petition for post-conviction relief violated due process and equal protection. Some of Oppelt's claims had been raised on direct appeal, and were thus procedurally barred under Montana law. The remaining claim was considered and denied on the merits. Oppelt cites no authority, and we have found none, for the proposition that due process requires state courts to review collaterally alleged errors which the courts resolved on the merits on direct review.

The judgment of the district court is AFFIRMED.