NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 20 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-16264
Plaintiff-Appellee, D.C. No. 4:17-cr-00025-JD-1
v. MEMORANDUM* RUSSELL MCCLOUD,
Defendant-Appellant.
Appeal from the United States District Court for the Northern District of California James Donato, District Judge, Presiding
Submitted April 18, 2023** San Francisco, California
Before: CALLAHAN and BUMATAY, Circuit Judges, and BOLTON,*** District Judge.
Russell McCloud seeks review of the district court’s denial of his petition to
vacate his sentence under 28 U.S.C. § 2255. We review the district court’s legal
* 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). *** The Honorable Susan R. Bolton, United States District Judge for the District of Arizona, sitting by designation. conclusions de novo and factual findings for clear error. United States v. Zuno-Arce,
339 F.3d 886, 888 (9th Cir. 2003). We have jurisdiction under 28 U.S.C. § 2253,
and we affirm.
1. McCloud first claims that government misconduct rendered his guilty plea
involuntary and unknowing. To enter a plea voluntarily and knowingly, “[a]
defendant must have notice of the nature of the charges against him” and “must
understand the consequences of his plea.” Tanner v. McDaniel, 493 F.3d 1135, 1147
(9th Cir. 2007) (simplified). McCloud does not deny that he had notice of the
charges against him or that he was aware of the general consequences of entering a
guilty plea. Rather, he claims his plea agreement was not knowing and voluntary
because prosecutors failed to disclose impeachment material and misrepresented
facts at the suppression hearing.
McCloud’s arguments lack support in law and in the record. First, prosecutors
do not have a duty to disclose impeachment evidence to a defendant before he enters
a guilty plea. See United States v. Ruiz, 536 U.S. 622, 629 (2002) (holding that the
Constitution does not require “preguilty plea disclosure of impeachment
information”). McCloud argues that Ruiz was a “fast track” case and does not apply
in other cases. We disagree. The Supreme Court did not limit its constitutional
ruling in Ruiz to only “fast track” cases.
And the failure to disclose the impeachment material here did not make
2 McCloud’s guilty plea unknowing or involuntary. As the Supreme Court said, “the
law ordinarily considers a waiver knowing, intelligent, and sufficiently aware if the
defendant fully understands the nature of the right and how it would likely apply in
general in the circumstances—even though the defendant may not know the specific
detailed consequences of invoking it.” Id. (emphasis in original). Here, McCloud
was aware that the police reports may have contained potential impeachment
material. During the suppression hearing, police officers testified that they were
investigating a robbery at the time that they stopped McCloud and subsequently
discovered a firearm in his car. McCloud’s initial attorney suspected they were not
investigating the robbery at the time and informed McCloud that he would seek the
police reports for impeachment purposes. McCloud then chose to plead guilty
without receiving the reports. So the lack of disclosure here did not render
McCloud’s plea involuntary or unknowing.
Second, the prosecutor’s inaccurate statements about the robbery
investigation at the suppression hearing did not induce McCloud to plead guilty.
Even if the officers lacked reasonable suspicion to stop McCloud based on their
investigation, they had other justifications for the traffic stop and subsequent search
of McCloud’s car. The officers were justified in stopping McCloud either after
observing him make an illegal U-turn or after discovering that his vehicle
registration was expired. See United States v. Willis, 431 F.3d 709, 714 (9th Cir.
3 2005). They were also justified in further investigating when they noticed a
marijuana cigarette in McCloud’s center console. And the officers had a reasonable,
good-faith belief that McCloud was on probation and subject to a search. See
Samson v. California, 547 U.S. 843, 846 (2006); see also Herring v. United States,
555 U.S. 135, 144 (2009) (stating police conduct must be deliberate to trigger
exclusionary rule). McCloud’s argument that the officers unconstitutionally
prolonged the stop by looking up his probation status lacks merit. Officers may
conduct “ordinary inquiries” at a traffic stop, such as “checking the driver’s license,
determining whether there are outstanding warrants against the driver, and
inspecting the automobile’s registration and proof of insurance.” Rodriguez v.
United States, 575 U.S. 348, 355 (2015). So the officers here were constitutionally
allowed to run a records check on McCloud. In view of the other grounds for the
stop and the search, McCloud has not shown how the prosecutor’s
misrepresentations or omissions regarding the robbery induced his guilty plea.
Finally, to the extent McCloud challenges his sentence on due process
grounds, those claims are waived by his plea agreement. See United States v. Bibler,
495 F.3d 621, 623–24 (9th Cir. 2007).
2. McCloud asserts that his initial attorney was ineffective. To vacate his
conviction because of ineffective assistance of counsel, McCloud must prove (1)
“that [his] counsel’s performance was deficient” and (2) “that the deficient
4 performance prejudiced [him].” Strickland v. Washington, 466 U.S. 668, 687
(1984). He fails on both fronts.
McCloud argues that his first lawyer’s performance was deficient because he
did not file a reply in support of his motion to suppress and because he did not
respond to the prosecutor’s false statements at the suppression hearing. But filing a
reply is optional and is thus “not so essential to the fundamental fairness of the
appellate process” that an attorney’s failure to do so can be considered deficient.
United States v. Birtle, 792 F.2d 846, 848 (9th Cir. 1986). Similarly, lawyers need
not seize every opportunity to raise arguments at a hearing. Indeed, “judicious
selection of arguments . . .
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 20 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-16264
Plaintiff-Appellee, D.C. No. 4:17-cr-00025-JD-1
v. MEMORANDUM* RUSSELL MCCLOUD,
Defendant-Appellant.
Appeal from the United States District Court for the Northern District of California James Donato, District Judge, Presiding
Submitted April 18, 2023** San Francisco, California
Before: CALLAHAN and BUMATAY, Circuit Judges, and BOLTON,*** District Judge.
Russell McCloud seeks review of the district court’s denial of his petition to
vacate his sentence under 28 U.S.C. § 2255. We review the district court’s legal
* 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). *** The Honorable Susan R. Bolton, United States District Judge for the District of Arizona, sitting by designation. conclusions de novo and factual findings for clear error. United States v. Zuno-Arce,
339 F.3d 886, 888 (9th Cir. 2003). We have jurisdiction under 28 U.S.C. § 2253,
and we affirm.
1. McCloud first claims that government misconduct rendered his guilty plea
involuntary and unknowing. To enter a plea voluntarily and knowingly, “[a]
defendant must have notice of the nature of the charges against him” and “must
understand the consequences of his plea.” Tanner v. McDaniel, 493 F.3d 1135, 1147
(9th Cir. 2007) (simplified). McCloud does not deny that he had notice of the
charges against him or that he was aware of the general consequences of entering a
guilty plea. Rather, he claims his plea agreement was not knowing and voluntary
because prosecutors failed to disclose impeachment material and misrepresented
facts at the suppression hearing.
McCloud’s arguments lack support in law and in the record. First, prosecutors
do not have a duty to disclose impeachment evidence to a defendant before he enters
a guilty plea. See United States v. Ruiz, 536 U.S. 622, 629 (2002) (holding that the
Constitution does not require “preguilty plea disclosure of impeachment
information”). McCloud argues that Ruiz was a “fast track” case and does not apply
in other cases. We disagree. The Supreme Court did not limit its constitutional
ruling in Ruiz to only “fast track” cases.
And the failure to disclose the impeachment material here did not make
2 McCloud’s guilty plea unknowing or involuntary. As the Supreme Court said, “the
law ordinarily considers a waiver knowing, intelligent, and sufficiently aware if the
defendant fully understands the nature of the right and how it would likely apply in
general in the circumstances—even though the defendant may not know the specific
detailed consequences of invoking it.” Id. (emphasis in original). Here, McCloud
was aware that the police reports may have contained potential impeachment
material. During the suppression hearing, police officers testified that they were
investigating a robbery at the time that they stopped McCloud and subsequently
discovered a firearm in his car. McCloud’s initial attorney suspected they were not
investigating the robbery at the time and informed McCloud that he would seek the
police reports for impeachment purposes. McCloud then chose to plead guilty
without receiving the reports. So the lack of disclosure here did not render
McCloud’s plea involuntary or unknowing.
Second, the prosecutor’s inaccurate statements about the robbery
investigation at the suppression hearing did not induce McCloud to plead guilty.
Even if the officers lacked reasonable suspicion to stop McCloud based on their
investigation, they had other justifications for the traffic stop and subsequent search
of McCloud’s car. The officers were justified in stopping McCloud either after
observing him make an illegal U-turn or after discovering that his vehicle
registration was expired. See United States v. Willis, 431 F.3d 709, 714 (9th Cir.
3 2005). They were also justified in further investigating when they noticed a
marijuana cigarette in McCloud’s center console. And the officers had a reasonable,
good-faith belief that McCloud was on probation and subject to a search. See
Samson v. California, 547 U.S. 843, 846 (2006); see also Herring v. United States,
555 U.S. 135, 144 (2009) (stating police conduct must be deliberate to trigger
exclusionary rule). McCloud’s argument that the officers unconstitutionally
prolonged the stop by looking up his probation status lacks merit. Officers may
conduct “ordinary inquiries” at a traffic stop, such as “checking the driver’s license,
determining whether there are outstanding warrants against the driver, and
inspecting the automobile’s registration and proof of insurance.” Rodriguez v.
United States, 575 U.S. 348, 355 (2015). So the officers here were constitutionally
allowed to run a records check on McCloud. In view of the other grounds for the
stop and the search, McCloud has not shown how the prosecutor’s
misrepresentations or omissions regarding the robbery induced his guilty plea.
Finally, to the extent McCloud challenges his sentence on due process
grounds, those claims are waived by his plea agreement. See United States v. Bibler,
495 F.3d 621, 623–24 (9th Cir. 2007).
2. McCloud asserts that his initial attorney was ineffective. To vacate his
conviction because of ineffective assistance of counsel, McCloud must prove (1)
“that [his] counsel’s performance was deficient” and (2) “that the deficient
4 performance prejudiced [him].” Strickland v. Washington, 466 U.S. 668, 687
(1984). He fails on both fronts.
McCloud argues that his first lawyer’s performance was deficient because he
did not file a reply in support of his motion to suppress and because he did not
respond to the prosecutor’s false statements at the suppression hearing. But filing a
reply is optional and is thus “not so essential to the fundamental fairness of the
appellate process” that an attorney’s failure to do so can be considered deficient.
United States v. Birtle, 792 F.2d 846, 848 (9th Cir. 1986). Similarly, lawyers need
not seize every opportunity to raise arguments at a hearing. Indeed, “judicious
selection of arguments . . . is a core exercise of defense counsel’s discretion,” and is
deserving of a strong presumption that such selection results from strategy and not
neglect. Yarborough v. Gentry, 540 U.S. 1, 8 (2003).
McCloud’s counsel also did not provide deficient assistance by not moving to
compel disclosure of the police reports. Because other reasons justified the stop and
the search, his counsel reasonably assessed that moving to compel disclosure would
not do much, if anything, to suppress the evidence. Moreover, moving to compel
discovery would have jeopardized McCloud’s plea agreement. And McCloud’s later
attorneys reached the same conclusion regarding the suppression motion, further
undermining McCloud’s argument that his counsel’s actions fell below objectively
reasonable legal standards.
5 Furthermore, McCloud failed to show that if his counsel had provided better
legal assistance, he “would either have gone to trial or received a better plea
bargain.” United States v. Rodriguez-Vega, 797 F.3d 781, 788 (9th Cir. 2015)
(simplified). The other justifications for the stop and search show that the
suppression hearing would have led to the same result and thus there was no
reasonable probability that he would not have pleaded guilty. And McCloud’s self-
serving declaration is not enough in itself to show prejudice. See Lee v. United States
137 S. Ct. 1958, 1967 (2017) (“Courts should not upset a plea solely because of post
hoc assertions from a defendant about how he would have pleaded but for his
attorney’s deficiencies.”).
AFFIRMED.