Unpublished Disposition, 915 F.2d 1581 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 915 F.2d 1581 (9th Cir. 1990)

Brian Anthony BAUDENDISTEL, Petitioner-Appellant,v.Richard TILLSON, John K. Van De Kamp, Respondents-Appellees.

No. 89-16401.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 3, 1990.* Decided Oct. 10, 1990.

Before GOODWIN, Chief Judge, and JAMES R. BROWNING and RYMER, Circuit Judges.


MEMORANDUM** 

Brian Anthony Baudendistel, a ward of the California Youth Authority, appeals the district court's denial of his 28 U.S.C. § 2254 habeas petition without an evidentiary hearing. Baudendistel, who pleaded nolo centendere to a charge of first degree murder, contends that he was denied effective assistance of counsel by his attorney's failure to move to suppress his confession. We have jurisdiction under 28 U.S.C. § 2253. We review de novo, Iaea v. Sunn, 800 F.2d 861, 864 (9th Cir. 1986), and we affirm.

To establish a claim of ineffective assistance of counsel, a claimant must show that counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

Deficient performance is one in which "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. We maintain a strong presumption that counsel's conduct falls within "the wide range of reasonable professional assistance." Strickland, Id. at 689. Tactical decisions of counsel ordinarily do not rise to the level of ineffective assistance. See Guam v. Santos, 741 F.2d 1167, 1169 (9th Cir. 1984).

To establish prejudice in the context of a guilty plea,1  the defendant must show that but for counsel's errors, there is a reasonable probability the defendant would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985).

Baudendistel contends that his confession was not admissible because (1) it was obtained as a result of an unauthorized search and seizure in his home and (2) it was involuntary. He concludes that his counsel's failure to move to suppress the confession constitutes ineffective assistance. Nevertheless, the record shows that the detectives entered the minor's residence with his father's consent. Thus, there was no fourth amendment violation. Further, considering the totality of the circumstances, we find that Baudendistel's subsequent confession was not obtained by physical or psychological coercion, but was the result of his free will. See Colorado v. Connelly, 479 U.S. 157, 167, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986); United States v. Leon Guerrero, 847 F.2d 1363, 1366 (9th Cir. 1988). Thus, the confession was voluntary.

Moreover, Baudendistel's counsel also decided not to file a motion to suppress in order to keep his case in juvenile court. This tactical decision does not constitute ineffective assistance of counsel. See Santos, 741 F.2d at 1169.

AFFIRMED.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

Baudendistel pleaded nolo contendere to first degree murder, which under California law has the same effect as a guilty plea. See People v. West, 3 Cal. 3d 595, 601, 477 P.2d 409, 91 Cal. Rptr. 385 (1970)