John Matthew Toomey v. Bill J. Bunnell, Warden

898 F.2d 741, 1990 U.S. App. LEXIS 3441, 1990 WL 25341

Opinions

BEEZER, Circuit Judge,

with whom FARRIS, Circuit Judge, joins:

John Toomey appeals the district court’s denial of his petition for a writ of habeas corpus. Toomey alleges that his attorney’s failure to move for the suppression of certain evidence constituted ineffective assistance of counsel, and that the actions of California police and courts violated his due process rights. We affirm.

I

On May 23, 1982, Toomey was arrested in his automobile for armed robbery in San Diego, California. Toomey does not contend that the arresting officer, Officer Ray-bould, lacked probable cause. Officer Ray-bould opened the trunk of the automobile. He saw a large suitcase with money sticking out of one end, and the outline of a revolver visible.

There is some ambiguity about what Raybould did next. He testified at trial that he searched the suitcase at the scene. Toomey contends, on the basis of Ray-bould’s police report, that the search was carried out by Parole Officer Goya the next morning at the police station. The district court assumed the former. The police report indicates that a search was performed at the police station, but Toomey has not supplied the relevant page for the previous evening that would indicate whether Ray-bould examined the suitcase at the scene of the arrest. In any case, the search revealed substantial evidence linking Toomey to armed robberies in the area.

At the time of the arrest Toomey was on parole. There is ambiguity as to whether he actually signed his “Notice and Conditions of Parole.” The form bears his signature, but in the wrong location, and also the notation “Refused to sign — Rules discussed.” The notice was a consent form authorizing warrantless search of Toomey and his property at any time by any law enforcement officer.

Toomey’s attorney did not move the trial court for suppression of the suitcase evidence. Toomey alleges that he passed a note to his attorney at trial asking why the police had failed to obtain warrants. He received this reply: “It’s not required! You are going to have to remember not to play jailhouse lawyer ... Just believe me when I say its [sic] not important — I intend to screw-up so you have some chance on appeal.” Toomey’s counsel has executed an affidavit stating that “I do not remember the writing of the note but believe the handwriting is mine. I do not know why the very cavalier and somewhat idiotic note was written or what would possess any lawyer, especially your declarant, to write that he intended to screw up a case.” The attorney stated, however, that he had not moved to suppress because he knew of Toomey’s parole conditions authorizing searches, and felt that a fruitless motion would have had especially adverse consequences if made to that particular trial judge. The attorney did object at trial to admission of the evidence, but indicated to the judge that he made the objection at Toomey’s request to preserve the issue on appeal, and did not consider it meritorious.

Toomey was convicted on August 16, 1982 of several counts of armed robbery, and other offenses, and sentenced to seventeen years and four months in prison. Too-mey appealed directly on various grounds not raised in the present petition. On appeal, the convictions were affirmed.

Toomey petitioned in state court for a writ of habeas corpus on the ground that his counsel was ineffective in failing to move for suppression of evidence, and that the evidence had been seized in violation of state search and seizure law. The appellate court denied relief on two grounds: first, even assuming that Toomey’s parole waiver was ineffective, the search was lawful because it was incident to a felony arrest; second, Toomey had not demonstrated prejudice from the alleged incompetency of counsel. The California Supreme Court denied the appeal by postcard. Too-mey filed a second state petition alleging ineffective assistance of counsel. It also was denied by the state courts.

Toomey then filed a petition in the district court on August 5, 1987, alleging three grounds for federal habeas corpus relief: ineffective assistance of counsel, a fourth amendment violation, and California’s violation of his due process by its misapplication of state law. The district court denied the petition on the merits, ruling that: 1) Toomey’s counsel was not ineffective in failing to protest the search because it had been held legal under California law; 2) warrantless searches of an automobile’s contents with probable cause do not violate the fourth amendment; and 3) Toomey’s argument that his constitutional rights were violated by the California courts’ alleged failure to apply the state law in force at the time of his arrest was “preposterous.”

Toomey timely appeals to this court. Fed.R.App.P. 4(a)(1). We have jurisdiction. 28 U.S.C. § 1291. We review the district court’s denial of the petition de novo. Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir.1986), cert. denied, 484 U.S. 870, 108 S.Ct. 198, 98 L.Ed.2d 149 (1987). We review factual findings of the district court for clear error. Hayes v. Kincheloe, 784 F.2d 1434, 1436 (9th Cir.1986), cert. denied, 484 U.S. 871, 108 S.Ct. 198, 98 L.Ed.2d 150 (1987).

II

Toomey’s principal argument is his claim that his trial counsel was ineffective for failing to move to suppress evidence. Too-mey claims that the search of the suitcase was a violation of California constitutional law as of May 23, 1982.¹ See People v. Ruggles, 39 Cal.3d 1, 702 P.2d 170, 216 Cal.Rptr. 88 (1985); People v. Minjares, 24 Cal.3d 410, 153 Cal.Rptr. 224, 591 P.2d 514, cert. denied, 444 U.S. 887, 100 S.Ct. 181, 62 L.Ed.2d 117 (1979). We do not rule on questions of state law. We may consider, however, whether counsel’s failure to raise a possible state law argument amounted to a violation of Toomey’s sixth amendment right to effective assistance of counsel.

A habeas petitioner has the burden of showing that his counsel “made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). The test is that of “reasonably effective assistance” within “the wide range of reasonable professional assistance.” Id. at 687, 689, 104 S.Ct. at 2064, 2065. If counsel’s performance constituted unreasonable professional error, the petitioner must further show a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. Id. at 694, 104 .²

We do not condone the note written by counsel, or the strategy it represents. “Screwing up” in order to allow some grounds for appeal is not a reasonable trial strategy. Toomey’s counsel correctly characterizes his own conduct as “idiotic.” However, even assuming that the first part of the Strickland test is met, we find that Toomey has failed to demonstrate that the result of the proceeding would reasonably have been different. First, the state courts held that the search was lawful, and we do not question their judgment on matters of state law. Second, no fourth amendment violation arose from the search of the automobile or any of its contents, when there was probable cause to believe the automobile contained contraband, whether or not the search was conducted at the scene of the arrest. United States v. Johns, 469 U.S. 478, 483-88, 105 S.Ct. 881, 884-87, 83 L.Ed.2d 890 (1985); United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).

Third, Toomey had waived his privacy interest to be free from searches and seizures as a condition of his parole. Despite some ambiguities on the face of the consent form, Toomey makes an insufficient showing that his signature was forged, as he alleges, or indeed that any refusal to sign the document waived the condition. We do not approve of general waivers of fourth amendment rights as a condition of parole. See United States v. Consuelo-Gonzalez, 521 F.2d 259, 262-63 (9th Cir.1975) (en banc). However, parole searches may be conducted without a warrant under a reasonableness standard. Id. The search conducted by Parole Officer Goya, after Toomey had been arrested with probable cause, was reasonable.

In short, we find the prospects of success of the motion to suppress too remote for counsel’s failure to have pressed it to have constituted a sixth amendment violation. The connection between a motion to suppress and a reasonable likelihood of a different verdict is even more attenuated.

Ill

Toomey does not argue on appeal that the search violated the fourth amendment. He has expanded his due process claim into an argument that a 1982 California constitutional amendment was an ex post facto law. Toomey’s due process and fourth amendment arguments were not raised in state proceedings. Therefore, his petition is mixed. In light of the state’s failure to raise nonexhaustion, however, we exercise our discretion to decide that the administration of justice is better served by reaching the merits. See Granberry v. Greer, 481 U.S. 129, 133, 107 S.Ct. 1671, 1674, 95 L.Ed.2d 119 (1987); Ames v. Endell, 856 F.2d 1441, 1444 (9th Cir.1988).

Toomey argues that his due process rights were violated in three ways. First, he contends that the California courts applied Proposition 8 to his case, thus subjecting him to an ex post facto law. Toomey’s ex post facto claim is meritless. The prohibition of ex post facto legislation does not apply to changes in state matters of criminal procedure, such as the scope of the exclusionary rule. See Dobbert v. Florida, 432 U.S. 282, 293, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977).

Second, Toomey argues generally that the California courts violated his due process rights by failing to apply California constitutional law holding pre-Proposition 8 searches unconstitutional under similar facts. Proposition 8 has been held on its face not to violate the due process clause. California v. Greenwood, 486 U.S. 35, 44, 108 S.Ct. 1625, 1631, 100 L.Ed.2d 30 (1988). Toomey has no federal constitutional right to have pre-Proposition 8 state case law applied to his case, even if California courts generally have chosen not to apply Proposition 8 retroactively. See id.; Dobbert, 432 U.S. at 293, 97 S.Ct. at 2298.

Toomey relies on Hicks v. Oklahoma, 447 U.S. 343, 100 S.Ct. 2227, 65 L.Ed.2d 175 (1980). Hicks vacated an Oklahoma conviction under a habitual offender statute later declared unconstitutional by a state appellate court, when the same appellate court had affirmed Hicks’ conviction despite the admitted unconstitutionality of the statute. The Court found this to be an arbitrary deprivation of a liberty interest protected by the fourteenth amendment. Id. at 346, 100 S.Ct. at 2229.

This case is very different. Here, the state courts merely interpreted their criminal procedure case law differently than does Toomey on the scope of California’s exclusionary rule. It is difficult to determine the exact grounds of the various state rulings due to their brevity. We see no arbitrary denial of any liberty interest, however, sufficient to allow us to conclude that California courts flouted their state’s substantive law in violation of the fourteenth amendment.

Toomey’s final due process argument is a claim that California violated his rights as a result of Officer Raybould’s testimony contradicting his police report. Since the search was legal whether it was conducted at the arrest scene or at the police station, this discrepancy was completely harmless.

The district court’s denial of the petition for a writ of habeas corpus is affirmed.

AFFIRMED. '

1

. Ruggles held that a warrantless search of luggage found in an automobile violated the California Constitution. Id., 216 Cal.Rptr. at 94-95, 702 P.2d 170. Ruggles and its predecessors applied only to searches performed before June 8, 1982. Id. at 94 n. 4, 702 P.2d 170. Proposition 8 amended the California Constitution effective on that date to require the admission of all relevant evidence not barred by the federal exclusionary rule. Cal. Const. Ann. art. I § 28(d) (1983).

2

. The dissent argues that we should apply United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), instead of Strickland. Cronic presumes prejudice where there has been an actual breakdown in the adversarial process at trial. Id. at 659, 104 S.Ct. at 2047. We have applied the Cronic exception very sparingly. See, e.g., Smith v. Ylst, 826 F.2d 872 (9th Cir.1987), cert. denied, — U.S. -, 109 S.Ct. 83, 102 L.Ed.2d 59 (1988) (attorney's mental illness was not grounds for per se rule of prejudice).

In this case, Toomey's attorney actively participated in the trial and was so zealous in pursuing his client’s rights that he apparently violated ethical rules to give Toomey a chance to succeed on appeal. On similar facts, we have previously declined to apply Cronic. In Harding v. Lewis, 834 F.2d 853 (9th Cir.1987), cert. denied, — U.S. -, 109 S.Ct. 182, 102 L.Ed.2d 151 (1988), the lawyer advised his client to waive his right to counsel, hoping that this might create reversible error in the proceedings. On habeas review, we applied the Strickland test and did not presume prejudice for two reasons. First, we found that the defendant was a knowing participant in the scheme and so was not entitled to habeas relief because the waiver was voluntary. Second, we found that allowing the presumption would create a "foolproof defense.” 834 F.2d at 859. Both of these rationales are applicable here.

Toomey’s knowledge of his attorney’s efforts to “screw up” is proven by the very evidence he is using to demonstrate the sixth amendment violation — the note passed to him from his attorney. Toomey knew what his attorney was doing and constructively participated in this scheme. The second rationale is even more persuasive in this case. If we allow Toomey’s counsel to intentionally "screw up” to allow his client to receive a new trial, then the attorney’s strategy will create a foolproof defense. All the lawyer needs to do is intentionally fail to raise a frivolous motion to suppress, supply his client with proof of his intentions, and the client is then guaranteed a second trial. We cannot allow such schemes to succeed.