Bailey v. Newland

• Citation: 263 F.3d 1022
• Decision Date: 31 August 2001
• Docket Number: No. 99-17654,DEFENDANT-APPELLEE,PLAINTIFF-APPELLANT,99-17654
• Parties: (9th Cir. 2001) ROBIN LYNN BAILEY,, v. ANTHONY NEWLAND, WARDEN,
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1022

263 F.3d 1022 (9th Cir. 2001)

ROBIN LYNN BAILEY, PLAINTIFF-APPELLANT, v. ANTHONY NEWLAND, WARDEN, DEFENDANT-APPELLEE.

No. 99-17654

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted June 12, 2001

Filed August 31, 2001

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] David M. Porter, Assistant Federal Defender, Sacramento, California, for the appellant.

R. Todd Marshall, Deputy Attorney General, Sacramento, California, for the appellee.

Appeal from the United States District Court for the Eastern District of California David F. Levi, District Judge, Presiding D.C. No. CV 96-02112-DFL

Before: Alfred T. Goodwin, Susan P. Graber, and M. Margaret McKeown, Circuit Judges.

GOODWIN, Circuit Judge:

Robin Lynn Bailey appeals the judgment denying his petition for a writ of habeas corpus. He argues that his appellate counsel provided ineffective assistance by failing to challenge the California superior court's denial of his motion to suppress evidence seized from a motel room after he was arrested outside the room.

I. Factual and Procedural History

Bailey was convicted in California superior court of second-degree robbery and assault with a deadly weapon. Critical items of evidence in his conviction included a pistol seized by officers who arrested Bailey. Bailey's trial counsel filed a motion to suppress grounded on his theory that (1) the officers did not have reasonable suspicion to detain Bailey when he stepped from the motel room; (2) the officers' detention of Bailey was a pretext to search the room; (3) there were no exigent circumstances that would justify warrantless entry, search, and seizure; and (4) the police could not seize the evidence pursuant to the plain view doctrine because it was not necessarily contraband.

Officers Troy Phillips and Glen Cadwell testified at the suppression hearing. Their story is summarized as follows:

Officers Phillips and Cadwell responded to a tip that two armed black males staying in room 15 of the Lull-a-bye Motel were selling drugs. When the officers approached the motel, they saw a blue Volvo parked directly in front of room 15, with no other cars parked in the immediate area. Although it was approximately 2:15 a.m., the lights were on in the room. One of the officers called in a license check on the Volvo, and the dispatcher informed him that the car was stolen. Officers Phillips and Cadwell then approached the room with the intent to conduct "a knock-and-talk search," which Officer Phillips described as an opportunity to advise the occupants that the officers had received a complaint of criminal activity, to ask the occupants if they would allow the officers to come into the residence and if they will speak with the officers, and for the officers to take a look inside the room while the door is open.

Officer Phillips testified that before either officer could knock on the door, the first occupant, later determined to be Anthony Cowans, emerged from the room and stepped onto the porch outside the door. Contrary to Officer Phillips' testimony, Officer Cadwell testified that Phillips knocked on the door and announced the officers' presence before Cowans left the room. Officer Phillips testified that after Cowans left the room, Officer Phillips identified himself as a police officer and informed Cowans that he would be detained. According to Officer Phillips, someone inside the room then slammed the door.

Officer Cadwell promptly searched Cowans, handcuffed him, and placed him in a police car. Officer Phillips testified that he then began knocking on the door and he identified himself as a police officer. He testified that he knocked for about one-and-a-half to two minutes while continuing to identify himself as a police officer but issued no commands or orders. Officer Phillips was in uniform and had his gun drawn. After some delay, Bailey, opened the door and stepped out of the room. After Bailey left the room, Officer Phillips identified himself, returned his gun to its holster, handcuffed Bailey, and placed him in a separate patrol car from Cowans.

Officer Phillips testified that he then returned to the room and looked through the doorway, which had remained open, and that he saw underneath a bed what appeared to be a black revolver with a wooden handle. On cross-examination, Officer Phillips also testified that from his vantage point outside the door, he could see burnt matches, one-inch-by-one-inch baggies, a set of keys, and glass pipe commonly used with drugs. He testified that he was concerned that there might be other people in the room who could attack the officers with the gun, and therefore, he entered the room, retrieved the gun, and conducted a protective sweep of the room.

Officer Cadwell testified that, a few hours earlier, while on his way to work, he had observed two black men inside a blue Volvo. He said he had a clear view of the occupants because the cars sat alongside each other at an intersection. He noticed that the passenger was a black male and had a jeri curl and that the driver was also a black male and that he had ponytails on the right side of his head. Officer Cadwell explained that he noticed the car because "[w]ithout sounding prejudice [sic] or anything, they just didn't fit the car," and because "it was odd that someone that young would be driving that type of vehicle." He also testified that the Volvo seemed out of place in that part of town. When he arrived at the motel, although he was not 100 percent sure, he did believe that it was the same Volvo. Officer Cadwell said that when he saw Cowans and Bailey, he recognized them as the men he had previously seen in the blue Volvo. The record is unclear whether the officers exchanged this information before making the two arrests.

Based on the testimony of the two officers, the state trial court denied the motion to suppress. In his state court appeal, Bailey's attorney argued only that Bailey's 1985 conviction did not qualify under the habitual offender statute but did not challenge the denial of the motion to suppress. The court of appeal affirmed the judgment, and Bailey's subsequent appeal to the California Supreme Court, raising the same issue, was denied without opinion.

Bailey filed several petitions for writs of habeas corpus in the California courts arguing, among other things, that his appellate counsel was ineffective for having failed to challenge the state court's denial of his motion to suppress evidence. The relevant petitions were denied without opinion.

In this court the state has conceded that Bailey has exhausted his state remedies and that the federal courts now have jurisdiction over his claim of ineffective assistance of appellate counsel. The state argues that any failure on the part of Bailey's appellate counsel to raise the legality of the seizure of the pistol and other evidence in the state appeal was not prejudicial for purposes of Strickland v. Washington 466 U.S. 668 (1984) because Bailey would not have prevailed on the appeal if counsel had raised the point. The district court agreed.

II. Standard of Review

We review the district court's decision to deny a 28 U.S.C. §§ 2254 habeas petition de novo. Bribiesca v. Galaza, 215 F.3d 1015, 1018 (9th Cir. 2000). Because Bailey filed his petition after April 24, 1996, it is governed by 28 U.S.C.§§ 2254 as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). La Crosse v. Kernan , 244 F.3d 702, 704 n.2 (9th Cir. 2001); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc). Under the relevant provision of AEDPA, a federal court may grant relief only if the state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. §§ 2254(d)(1).

A state court's decision can be "contrary to" Federal law

(1) when the state court has failed to apply the correct controlling authority from the Supreme Court or (2) when the state court has applied the correct controlling authority from the Supreme Court to a case involving facts `materially indistinguishable' from those in a controlling case, but has nonetheless reached a different result.

Shackleford v. Hubbard, 234 F.3d 1072, 1077 (9th Cir. 2000), petition for cert. filed, No. 00-9987 (U.S. May 14, 2001).

A state court's decision can involve an `unreasonable application' of Federal law if it either 1) correctly identifies the governing rule but then applies it to a new set of facts in a way that is objectively unreasonable, or 2) extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable.

Van Tran v. Lindsey, 212 F.3d 1143, 1150 (9th Cir.), cert. denied, 531 U.S. 944 (2000).

Because we "are presented with a state court decision that is unaccompanied by any ratio decidendi, " "an independent review of the record is required to determine whether the state court clearly erred in its application of controlling federal law." Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000); accord Wilcox v. McGee, 241 F.3d 1242, 1245 (9th Cir. 2001).

III. Discussion

"We review claims of ineffective assistance of appellate counsel according to the standard set out in Strickland v. Washington, 466 U.S. 668 (1984) . . . ." Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989); see also Pollard v. White, 119 F.3d 1430, 1435 (9th Cir. 1997). To show that an attorney's representation of a client was ineffective under Strickland, the petitioner must establish that: (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists "that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 688, 694.

We have stated, in applying Strickland to a claim of ineffective...