Unpublished Disposition, 928 F.2d 1137 (9th Cir. 1991)
Annotate this CaseMichael L. MONTALVO, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.
No. 89-55286.
United States Court of Appeals, Ninth Circuit.
Submitted March 20, 1991.* Decided March 25, 1991.
Appeal from the United States District Court for the Central District of California; No. CV-89-0714-DMT Dickran M. Tevrizian, District Judge, Presiding.
C.D. Cal.
AFFIRMED.
Before CYNTHIA HOLCOMB HALL, DAVID R. THOMPSON and RYMER, Circuit Judges.
MEMORANDUM**
Michael L. Montalvo, a federal prisoner, appeals pro se the district court's dismissal of his 28 U.S.C. § 2255 motion.1 We review de novo, Iaea v. Sunn, 800 F.2d 861, 864 (9th Cir. 1986), and we affirm.
Montalvo contends that he received ineffective assistance because his attorney convinced him to seek a trial continuance based on meritless defenses, instructed him to waive a jury trial, and instructed him to stipulate to certain facts. This contention lacks merit.
To demonstrate ineffective assistance, a defendant must show that his attorney's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient performance is demonstrated when "counsel made errors so serious that the counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. There is a strong presumption that counsel's conduct falls within "the wide range of reasonable professional assistance." Id. at 689. Prejudice is established if there is a reasonable probability that but for the counsel's error, the result of the proceeding would have been different. Id. at 694. A tactical decision by counsel with which the defendant disagrees cannot form the basis of a claim of ineffective assistance of counsel. Guam v. Santos, 741 F.2d 1167, 1169 (9th Cir. 1984).
Here, counsel's decisions to seek a trial continuance, to recommend waiver of a jury trial, and to stipulate to certain facts were reasoned tactical moves.2 Furthermore, the record demonstrates that Montalvo knowingly waived his right to a jury trial, stipulated to the facts, and acquiesced in his attorney's tactical decisions. Montalvo's subsequent disagreement with his attorney's strategies does not constitute ineffective assistance. See Guam, 741 F.2d at 1169.
Montalvo also contends he received ineffective assistance of counsel because although he advised his attorney that his prosecution and conviction were the result of an illegal search, the attorney failed to file a suppression motion. This contention lacks merit. Where an illegal search does no more than trigger a dormant investigation, the resulting case is not the fruit of an illegal search. See Wong Sun v. United States, 371 U.S. 471, 487-88 (1963); United States v. Aguilar, 883 F.2d 662, 708 (9th Cir. 1989), cert. denied, 111 S. Ct. 751 (1991). Here, the evidence obtained by the allegedly illegal search was not used in Montalvo's case; it was used to trigger a dormant investigation of Montalvo. Thus, even if Montalvo's attorney failed to file a suppression motion, Montalvo was not prejudiced. Strickland, 466 U.S. at 694.3 Montalvo also raises a litany of other claims challenging the assistance of counsel.4 We have examined these claims and find them meritless.
Montalvo's contention that the district court erred by failing to hold an evidentiary hearing also lacks merit. A district court may deny a section 2255 motion without an evidentiary hearing only if the movant's allegations, viewed against the record, either do not state a claim for relief or are so palpably incredible or patently frivolous as to warrant summary dismissal. Marrow v. United States, 772 F.2d 525, 526 (9th Cir. 1985); Bauman v. United States, 692 F.2d 565, 570-71 (9th Cir. 1982). Because Montalvo's claims of ineffective assistance of counsel do not state a claim for relief, an evidentiary hearing was not necessary and the district court properly denied Montalvo's section 2255 motion.
AFFIRMED.5
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 Circuit R. 36-3
Montalvo has already served the sentence imposed in this case. He remains incarcerated, however, serving sentence for another criminal conviction. Because Montalvo challenges the validity of his conviction and because he still faces collateral consequences of his conviction, this section 2255 motion is not moot. United States v. Hearst, 638 F.2d 1190, 1192 n. 1 (9th Cir. 1980), cert. denied, 451 U.S. 938 (1981)
Montalvo asserts that the defense strategy was unreasonable because it centered on a defense that was meritless and fabricated by his attorney. Nevertheless, Montalvo participated in the alleged fabrication. Moreover, even assuming that this allegation is true, his attorney's questionable conduct did not prejudice Montalvo. See, e.g., United States v. Harden, 846 F.2d 1229, 1231 (9th Cir. 1988) (there must be a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different), cert. denied, 109 S. Ct. 264 (1988)
One of Montalvo's attorney filed a motion to suppress evidence obtained through a consensual search of his girlfriend's purse. Montalvo asserts that the motion was inaccurate in that the girlfriend's consent was obtained through deception and coercion. This contention lacks merit. In order to have standing to challenge a search, an individual must have the requisite privacy interest. Rakas v. Illinois, 439 U.S. 128, 143 (1978). Here, Montalvo did not have standing to object to the search because he did not have a reasonable expectation of privacy in his girlfriend's purse. See id.; United States v. Medina-Verdugo, 637 F.2d 649, 652 (9th Cir. 1980). Thus, Montalvo was not prejudiced by the filing of the allegedly inaccurate suppression motion. Strickland, 466 U.S. at 694.4 The claims include counsel's failure to file a notice of insanity defense, counsel's advice not to cooperate with the presentence officer, counsel's failure to file discovery motions, counsel's illness, and the claim that counsel's investigator used the case to further a vendetta against a police department unrelated to the case
Montalvo also argues that the United States failed to disclose information it had a duty to disclose under Brady v. Maryland, 383 U.S. 83 (1963). Nevertheless, Montalvo's conclusory allegations fail to demonstrate that the government failed to disclose material evidence. See United States v. Tham, 884 F.2d 1262, 1266 (1989)
Montalvo attempts to raise a fourth amendment issue for the first time on appeal. Finding no extraordinary circumstances warranting review, we decline to address this issue. United States v. State of Oregon, 769 F.2d 1410, 1414 (9th Cir. 1985).
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