King v. Alameida

131 F. App'x 566

Opinion

MEMORANDUM

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Maurice Simeon King appeals the district court’s denial of his habeas corpus petition. We granted a certificate of appealability on the issue “whether trial counsel rendered ineffective assistance in violation of the Sixth Amendment by fading to move to suppress, pursuant to the Fourth Amendment, evidence seized as a result of petitioner’s initial detention and subsequent arrest.” We affirm.

No state court decision explained why the warrantless search of King did not violate the Fourth Amendment. The federal courts therefore independently review the record to determine whether under AEDPA the state court properly denied habeas relief, focusing on whether under Supreme Court cases the state court’s resolution of the case was an unreasonable application of clearly established federal law. See Greene v. Lambert, 288 F.3d 1081, 1088-89 (9th Cir.2002).

Under Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), King is required to show that his counsel’s performance was objectively unreasonable and that he was prejudiced by the deficient performance “to such an extent that the resulting proceedings were unreliable.” Delgado v. Lewis, 223 F.3d 976, 980 (9th Cir.2000). If the search comported with the Fourth Amendment, King was not prejudiced by the failure to move to suppress evidence. An independent review of the record shows that the officer was not unreasonable in patting down King, who had been observed slipping something into his waistband, and who seemed drunk and smelled of liquor. This was a reasonable application of Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), which held that when a police officer observes conduct which leads him reasonably to believe that a person may be armed and dangerous, identifies himself as a policeman and makes reasonable inquiries, and conducts a carefully limited search of outer clothing to discover weapons, the search is constitutional.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.