Opinion
No. 06-15517.
Argued and Submitted February 16, 2007.
This panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed February 23, 2007.
David D. Martin, Esq., Alameda, CA, for Petitioner-Appellant.
Nancy Hsiao-Hui Tung, Office of the California Attorney General, San Francisco, CA, for Respondent-Appellee.
Appeal from the United States District Court for the Northern District of California; Phyllis J. Hamilton, District Judge, Presiding. D.C. No. CV-05-01465-PJH.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Abelardo Vela, Jr. appeals the district court's order denying his federal habeas petition for ineffective assistance of counsel. We affirm.
United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001), upon which Vela relies, left open the question pertinent to Vela's case that was resolved in Samson v. California, ___ U.S. ___, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006). Furthermore, Knights does not entail that the manner in which the search was conducted was unconstitutional. Therefore, the California Superior Court's decision was neither contrary to nor an unreasonable application of clearly established federal law. 28 U.S.C. § 2254(d)(1). This being so, Vela cannot have been prejudiced by his counsel's failure to move to suppress, nor is his guilty plea implicated. Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).
AFFIRMED.
I would dismiss the appeal because it does not meet the case or controversy requirement of Article III.
The district court based its denial of Appellant's habeas petition on two independently sufficient grounds: (1) it found that his ineffective assistance of counsel claim was not cognizable because of Vela's intervening guilty plea where Vela's ineffective assistance of counsel claim did not implicate the knowing and voluntary nature of his plea; and (2) it found that Vela's ineffective assistance of counsel claim failed because he cannot show that a motion to suppress would have been meritorious and therefore he cannot show prejudice. Reversing the district court would require finding that neither ground provides a sufficient basis for denying Vela's habeas petition. In the Certificate of Appealability ("COA"), the district court only certified the issue of "whether [Vela's] counsel's failure to file a motion to suppress constituted ineffective assistance of counsel." It did not certify the issue of whether Vela's intervening guilty plea rendered his claim non-cognizable. Appellant requests that this Court reject the district court's findings concerning the effect of the guilty plea. His briefing of this issue does not comply with the requirements of Circuit Rule 22-1 (e), and Vela has not moved to expand the COA to include the uncertified guilty plea issue. Furthermore, because Vela has not made a "substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), I would decline to expand the COA to include the issue of the effect of Vela's guilty plea.
Only one of two alternative, adequate, and independent federal grounds for denying Vela's habeas petition is before us; therefore, I would hold that consideration of the issue specified in the COA is inappropriate. Phelps v. Alameda, 366 F.3d 722, 729-31 (9th Cir. 2004).