313 F.3d 1188 (9th Cir. 2002), 00-15859, U.S. v. Alaimalo

Docket Nº:00-15859.
Citation:313 F.3d 1188
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Vaatausili Mark ALAIMALO, Defendant-Appellant.
Case Date:December 20, 2002
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1188

313 F.3d 1188 (9th Cir. 2002)

UNITED STATES of America, Plaintiff-Appellee,

v.

Vaatausili Mark ALAIMALO, Defendant-Appellant.

No. 00-15859.

United States Court of Appeals, Ninth Circuit

December 20, 2002

Argued and Submitted Nov. 4, 2002.

Page 1189

Karon V. Johnson, Assistant United States Attorney, Hagatna, Guam, for the plaintiff-appellee.

Sarah Courageous, Honolulu, HI, for the defendant-appellant.

Appeal from the United States District Court for the District of Guam; John S. Unpingco, District Judge, Presiding. D.C Nos. CV-99-00106, CR-96-00039.

Before: SCHROEDER, Chief Judge, ALARCON and FISHER, Circuit Judges.

FISHER, Circuit Judge.

Vaatausili Mark Alaimalo ("Alaimalo") appeals the denial of his 28 U.S.C. § 2255 petition for a writ of habeas corpus. He contends that the failure of both his trial lawyer and his appellate lawyer to challenge the warrantless entry into his home as being without probable cause constituted ineffective assistance of counsel, in violation of the Sixth Amendment. Because we conclude that the officers had probable cause to believe that a package containing illegal drugs had been taken inside Alaimalo's home, we hold that Alaimalo did not receive ineffective assistance of counsel. We affirm the district court's denial of Alaimalo's habeas petition.

I.

Facts

Guam customs agents intercepted an express mail package containing more than 200 grams of methamphetamine when it arrived in Guam. The package was addressed

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to a Thomas Sablan at a postal box located in a private postal facility. U.S. and Guam customs agents decided to remove most of the methamphetamine, replace the drugs removed with pseudomethamphetamine and conduct a controlled delivery of the package. When Sablan had rented the postal box, he had given 16A Salsa Street as his address. Customs agents and Guam police officers set up surveillance of Salsa Street and the postal facility.

On October 6, 1995, at about 12:10 p.m., officers observed Sablan as he took the package from the postal facility and got into a Toyota pickup truck. There was another man, later identified as Alaimalo, sitting in the passenger seat. (Although the officers knew of a man named Alaimalo who trafficked in drugs, they did not learn until the raid in this case that the man in the truck was Alaimalo and that he played a role in this particular shipment of drugs.) Together, Sablan and Alaimalo drove by a circuitous and irregular route for about 20 minutes until they arrived at a group of three houses located on Esther Lane in a remote area. The officers were surprised by this destination, having no previous knowledge that Sablan might go there rather than to the Salsa Street address.

Officers were unable to maintain a close surveillance of Sablan and Alaimalo once they drove into Esther Lane and entered one of the three closely situated houses on the road. Esther Lane was an unpaved dead-end road that was approachable only from one direction, and the houses backed onto a large jungle ("boonie"). The police officers could get no closer than 200 yards without giving away their position, could not determine which of the three houses Sablan and Alaimalo had entered and were not in a position to observe should the package be moved into the boonie or from one of the houses to another.

Shortly after Sablan and Alaimalo's arrival, someone drove another truck out of Esther Lane. The police stopped the truck, and discovered that the driver was the brother of someone (later determined to be Alaimalo) who lived on Esther Lane. After searching the truck and finding no drugs, the police released the brother. They were concerned, however, that he might call on his cellphone to warn Sablan or Alaimalo about the officers' presence, as the district court found in its suppression ruling. Moreover, according to one officer's testimony, it is common practice for drug traffickers to open packages of drugs within 10 minutes of reaching a place of apparent safety in order, among other things, to test the...

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