Thomasdinh Bowman v. Melissa Andrewjeski

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 10, 2024
• Docket: 23-35230
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 10 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

THOMASDINH NEWSOME BOWMAN, No. 23-35230

Petitioner-Appellant, D.C. No. 2:22-cv-00316-DGE

v. MEMORANDUM* MELISSA ANDREWJESKI,

Respondent-Appellee.

Appeal from the United States District Court for the Western District of Washington David G. Estudillo, District Judge, Presiding

Submitted May 8, 2024** Seattle, Washington

Before: McKEOWN, W. FLETCHER, and OWENS, Circuit Judges.

Washington state prisoner Thomasdinh Bowman appeals from the district

court’s denial of his 28 U.S.C. § 2254 habeas petition challenging his 2014

conviction for first-degree murder. “We review the district court’s denial of

habeas relief de novo.” Panah v. Chappell, 935 F.3d 657, 663 (9th Cir. 2019).

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Bowman’s federal habeas petition is subject to the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), under which he is entitled to relief only if

the state court’s adjudication “resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established [f]ederal law, as

determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or

“was based on an unreasonable determination of the facts in light of the evidence

presented in the [s]tate court proceeding,” id. § 2254(d)(2). As the parties are

familiar with the facts, we do not recount them here. We affirm.

1. Bowman argues that he received ineffective assistance of counsel

under Strickland v. Washington, 466 U.S. 668 (1984), because his trial counsel did

not move to suppress evidence obtained from a search of a hard drive seized from

Bowman’s business. Strickland requires a person challenging a conviction to show

“that counsel’s performance was deficient” and “that the deficient performance

prejudiced the defense.” Id. at 687. In rejecting Bowman’s claim, “[t]he state

court did not specify whether this was because there was no deficient performance

under Strickland or because [Bowman] suffered no Strickland prejudice, or both.”

Premo v. Moore, 562 U.S. 115, 123 (2011). Regardless, “the state-court decision

was not an unreasonable application of either part of the Strickland rule.” Id.

The Supreme Court has explained that, when considering a Strickland claim

based on counsel’s failure to bring a suppression motion, “the relevant question” is

2 whether “no competent attorney would think a motion to suppress would have

failed.” Id. at 124. “Moreover, ‘in order to show prejudice when a suppression

issue provides the basis for an ineffectiveness claim, the petitioner must show that

he would have prevailed on the suppression motion, and that there is a reasonable

probability that the successful motion would have affected the outcome.’” Bailey

v. Newland, 263 F.3d 1022, 1029 (9th Cir. 2001) (quoting Van Tran v. Lindsey,

212 F.3d 1143, 1156 (9th Cir. 2000), overruled in part on other grounds by

Lockyer v. Andrade, 538 U.S. 63, 71 (2003)).

Bowman argues that his counsel should have moved to suppress the

evidence from the hard drive because the relevant search warrant authorized only

the seizure—not the search—of hard drives at his business. Alternatively, he

asserts that, to the extent the warrant authorized the search of those hard drives,

that search was limited to a search for records of repairs and damage to Bowman’s

BMW. But at least three different adjudicators (the Washington Court of Appeals,

the Washington Supreme Court Commissioner, and the magistrate judge) rejected

this restrictive reading of the warrant. They all determined that the warrant could

plausibly be construed to authorize the search of hard drives for any evidence

relating to the murder. Given this interpretive consensus, a “competent attorney”

could reasonably have thought “a motion to suppress would have failed.” Premo,

562 U.S. at 124.

3 Bowman asserts that Riley v. California, 573 U.S. 373 (2014),1 and United

States v. Payton, 573 F.3d 859 (9th Cir. 2009), compel his interpretation of the

warrant. But these cases are distinguishable. Riley considered (and rejected) the

argument that the warrant exception for searches incident to lawful arrest extended

to searches of data stored on cell phones. 573 U.S. at 386. But, in this case, there

was a warrant, which the state court construed to authorize the search of

Bowman’s hard drive for any evidence relating to the murder.

Likewise, in Payton, we invalidated the search of a computer found when

officers executed a search warrant that specified the items to be searched but

omitted any mention of computers. 573 F.3d at 864. Here, by contrast, the

warrant specifically listed “hard drive” as an object of the warrant, albeit under the

seize header. Because neither Riley nor Payton clearly controls Bowman’s case,

neither indicates that his trial counsel’s decision not to move to suppress based on

them was deficient. And, for much the same reasons, when it comes to prejudice,

Bowman has not proved that a suppression motion based on either Riley or Payton

would have succeeded. See Bailey, 263 F.3d at 1029.

Bowman also argues that his counsel should have moved to suppress

1 The government and Bowman disagree over whether Riley had been decided by the time Bowman’s counsel would have had to make a suppression motion. Assuming Riley was decided prior to the relevant time, it still would not render the state-court decision an unreasonable application of Strickland.

4 because, if the warrant did authorize the search of his hard drive for any material

relating to the murder, it was insufficiently particular. In support, he relies on

Stanford v. Texas, 379 U.S. 476 (1965), where the Supreme Court held

unconstitutional a warrant issued under an act that outlawed the Communist Party

in Texas and authorized the search of “books, records, pamphlets, cards, receipts,

lists, memoranda, pictures, recordings and other written instruments concerning the

Communist Party of Texas, and the operations of the Communist Party in Texas.”

Id. at 486. But, again, broad propositions from tangentially related cases are

insufficient to “overcome our ‘doubly’ deferential review of [Bowman’s

Strickland] claim under AEDPA.” Michaels v. Davis, 51 F.4th 904, 939 (9th Cir.

2022) (per curiam) (quoting Harrington v. Richter, 562 U.S. 86, 105 (2011)). As a

result, Bowman has not established that the state court unreasonably applied

Strickland in rejecting his claim.

2. We decline to expand the certificate of appealability to address

Bowman’s uncertified Strickland claim based on his trial counsel’s failure to

consult with or call a computer expert. See 28 U.S.C. § 2253(c)(2) (establishing

that a certificate of appealability may issue “only if the applicant has made a

substantial showing of the denial of a constitutional right”).

AFFIRMED.