Toomey v. Bunnell

Decision Date07 February 1989
Docket NumberNo. 88-6402,88-6402
Citation898 F.2d 741
PartiesJohn Matthew TOOMEY, Petitioner-Appellant, v. Bill J. BUNNELL, Warden, Respondent-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

John M. Toomey, San Diego, Cal., pro se.

Steven H. Zeigen, Supervising Deputy Atty. Gen., San Diego, Cal., for respondent-appellee.

Appeal from the United States District Court for the Southern District of California.

Before FARRIS, FERGUSON and BEEZER, Circuit Judges.

BEEZER, Circuit Judge, with whom FARRIS, Circuit Judge, joins:

John Toomey appeals the district court's denial of his petition for a writ of habeas corpus. Toomey alleges that his attorney's failure to move for the suppression of certain evidence constituted ineffective assistance of counsel, and that the actions of California police and courts violated his due process rights. We affirm.

I

On May 23, 1982, Toomey was arrested in his automobile for armed robbery in San Diego, California. Toomey does not contend that the arresting officer, Officer Raybould, lacked probable cause. Officer Raybould opened the trunk of the automobile. He saw a large suitcase with money sticking out of one end, and the outline of a revolver visible.

There is some ambiguity about what Raybould did next. He testified at trial that he searched the suitcase at the scene. Toomey contends, on the basis of Raybould's police report, that the search was carried out by Parole Officer Goya the next morning at the police station. The district court assumed the former. The police report indicates that a search was performed at the police station, but Toomey has not supplied the relevant page for the previous evening that would indicate whether Raybould examined the suitcase at the scene of the arrest. In any case, the search revealed substantial evidence linking Toomey to armed robberies in the area.

At the time of the arrest Toomey was on parole. There is ambiguity as to whether he actually signed his "Notice and Conditions of Parole." The form bears his signature, but in the wrong location, and also the notation "Refused to sign--Rules discussed." The notice was a consent form authorizing warrantless search of Toomey and his property at any time by any law enforcement officer.

Toomey's attorney did not move the trial court for suppression of the suitcase evidence. Toomey alleges that he passed a note to his attorney at trial asking why the police had failed to obtain warrants. He received this reply: "It's not required! You are going to have to remember not to play jailhouse lawyer ... Just believe me when I say its [sic] not important--I intend to screw-up so you have some chance on appeal." Toomey's counsel has executed an affidavit stating that "I do not remember the writing of the note but believe the handwriting is mine. I do not know why the very cavalier and somewhat idiotic note was written or what would possess any lawyer, especially your declarant, to write that he intended to screw up a case." The attorney stated, however, that he had not moved to suppress because he knew of Toomey's parole conditions authorizing searches, and felt that a fruitless motion would have had especially adverse consequences if made to that particular trial judge. The attorney did object at trial to admission of the evidence, but indicated to the judge that he made the objection at Toomey's request to preserve the issue on appeal, and did not consider it meritorious.

Toomey was convicted on August 16, 1982 of several counts of armed robbery, and other offenses, and sentenced to seventeen years and four months in prison. Toomey appealed directly on various grounds not raised in the present petition. On appeal, the convictions were affirmed.

Toomey petitioned in state court for a writ of habeas corpus on the ground that his counsel was ineffective in failing to move for suppression of evidence, and that the evidence had been seized in violation of state search and seizure law. The appellate court denied relief on two grounds: first, even assuming that Toomey's parole waiver was ineffective, the search was lawful because it was incident to a felony arrest; second, Toomey had not demonstrated prejudice from the alleged incompetency of counsel. The California Supreme Court denied the appeal by postcard. Toomey filed a second state petition alleging ineffective assistance of counsel. It also was denied by the state courts.

Toomey then filed a petition in the district court on August 5, 1987, alleging three grounds for federal habeas corpus relief: ineffective assistance of counsel, a fourth amendment violation, and California's violation of his due process by its misapplication of state law. The district court denied the petition on the merits, ruling that: 1) Toomey's counsel was not ineffective in failing to protest the search because it had been held legal under California law; 2) warrantless searches of an automobile's contents with probable cause do not violate the fourth amendment; and 3) Toomey's argument that his constitutional rights were violated by the California courts' alleged failure to apply the state law in force at the time of his arrest was "preposterous."

Toomey timely appeals to this court. Fed.R.App.P. 4(a)(1). We have jurisdiction. 28 U.S.C. Sec. 1291. We review the district court's denial of the petition de novo. Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir.1986), cert. denied, 484 U.S. 870, 108 S.Ct. 198, 98 L.Ed.2d 149 (1987). We review factual findings of the district court for clear error. Hayes v. Kincheloe, 784 F.2d 1434, 1436 (9th Cir.1986), cert. denied, 484 U.S. 871, 108 S.Ct. 198, 98 L.Ed.2d 150 (1987).

II

Toomey's principal argument is his claim that his trial counsel was ineffective for failing to move to suppress evidence. Toomey claims that the search of the suitcase was a violation of California constitutional law as of May 23, 1982. 1 See People v. Ruggles, 39 Cal.3d 1, 702 P.2d 170, 216 Cal.Rptr. 88 (1985); People v. Minjares, 24 Cal.3d 410, 153 Cal.Rptr. 224, 591 P.2d 514, cert. denied, 444 U.S. 887, 100 S.Ct. 181, 62 L.Ed.2d 117 (1979). We do not rule on questions of state law. We may consider, however, whether counsel's failure to raise a possible state law argument amounted to a violation of Toomey's sixth amendment right to effective assistance of counsel.

A habeas petitioner has the burden of showing that his counsel "made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). The test is that of "reasonably effective assistance" within "the wide range of reasonable professional assistance." Id. at 687, 689, 104 S.Ct. at 2064, 2065. If counsel's performance constituted unreasonable professional error, the petitioner must further show a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Id. at 694, 104

S.Ct. at 2068. 2

We do not condone the note written by counsel, or the strategy it represents. "Screwing up" in order to allow some grounds for appeal is not a reasonable trial strategy. Toomey's counsel correctly characterizes his own conduct as "idiotic." However, even assuming that the first part of the Strickland test is met, we find that Toomey has failed to demonstrate that the result of the proceeding would reasonably have been different. First, the state courts held that the search was lawful, and we do not question their judgment on matters of state law. Second, no fourth amendment violation arose from the search of the automobile or any of its contents, when there was probable cause to believe the automobile contained contraband, whether or not the search was conducted at the scene of the arrest. United States v. Johns, 469 U.S. 478, 483-88, 105 S.Ct. 881, 884-87, 83 L.Ed.2d 890 (1985); United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).

Third, Toomey had waived his privacy interest to be free from searches and seizures as a condition of his parole. Despite some ambiguities on the face of the consent form, Toomey makes an insufficient showing that his signature was forged, as he alleges, or indeed that any refusal to sign the document waived the condition. We do not approve of general waivers of fourth amendment rights as a condition of parole. See United States v. Consuelo-Gonzalez, 521 F.2d 259, 262-63 (9th Cir.1975) (en banc). However, parole searches may be conducted without a warrant under a reasonableness standard. Id. The search conducted by Parole Officer Goya, after Toomey had been arrested with probable cause, was reasonable.

In short, we find the prospects of success of the motion to suppress too remote for counsel's failure to have pressed it to have constituted a sixth amendment violation. The connection between a motion to suppress and a reasonable likelihood of a different verdict is even more attenuated.

III

Toomey does not argue on appeal that the search violated the fourth amendment. He has expanded his due process claim into an argument that a 1982 California constitutional amendment was an ex post facto law. Toomey's due process and fourth amendment arguments were not raised in state proceedings. Therefore, his petition is mixed. In light of the state's failure to raise nonexhaustion, however, we exercise our discretion to decide that the administration of justice is better served by reaching the merits. See Granberry v Greer, 481 U.S. 129, 133, 107 S.Ct. 1671, 1674, 95 L.Ed.2d 119 (1987); Ames v. Endell, 856 F.2d 1441, 1444 (9th Cir.1988).

Toomey argues that his due process rights were violated in three ways. First, he contends that the California courts applied Proposition 8 to his case, thus subjecting him to an ex post facto law. Toomey's ex post facto claim is meritless. The prohibition of ex post facto legislation does not apply to...

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