U.S. v. Alaimalo, 00-15859.

• Decision Date: 20 December 2002
• Docket Number: No. 00-15859.,00-15859.
• Citation: 313 F.3d 1188
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Vaatausili Mark ALAIMALO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1188

313 F.3d 1188

UNITED STATES of America, Plaintiff-Appellee, v. Vaatausili Mark ALAIMALO, Defendant-Appellant.

No. 00-15859.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 4, 2002.

Filed December 20, 2002.

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, ALARCÓN 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 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 drugs or divide them up. Therefore, the officers were also concerned that given the roughly 15 minutes that had already elapsed since Sablan and Alaimalo's arrival at the house, there was a serious risk they would have opened the package and discovered the contents were sham, alerting them to the police surveillance and the risk of arrest — whether or not Alaimalo's brother tipped them off. Fearing that Sablan and Alaimalo might try to escape or destroy the package and its contents, the officers decided they needed to move quickly to secure the area and prevent the destruction of evidence pending their obtaining a search warrant.

The officers moved down Esther Lane toward the three houses, two of which had their doors closed. Sablan's pickup truck was parked in front of the third house (which turned out to be Alaimaio's home), the door of which was open but covered by a screen door. The officers could hear the sounds of video games coming from inside. The officers looked briefly inside Sablan's Toyota pickup but did not see the package of drugs. As they approached Alaimalo's house, the police announced their presence by shouting "police, police." Sablan opened the screen door. The police took him outside and then entered the house to conduct a protective sweep, to prevent the destruction of evidence and to insure the safety of the officers and others who might be present. Encountering a locked bedroom door inside the home, the officers knocked loudly and demanded entry. When the door was opened, the officers found Alaimalo inside with his wife and child. Alaimalo held a kitchen knife, which he eventually put down when ordered to do so. While securing the residence, the officers discovered in plain view the remnants of the parcel's packaging.

Handcuffed, advised of his rights and told that officers were in the process of obtaining a search warrant, Alaimalo decided to cooperate if the officers promised to "keep [his] family out of this." Eventually, Alaimalo consented to a search and agreed to cooperate. With Alaimalo's help, the officers found the methamphetamine from the parcel and additional methamphetamine from a previous shipment.

II. Procedural History

Alaimalo was indicted and a jury convicted him on six methamphetamine trafficking counts. He was sentenced to life imprisonment on five of the counts and 360 months on another, the sentences to run concurrently.

Before Alaimalo's trial, his attorney, Lucy Brehm, moved to suppress evidence, arguing first that police and customs officers should have obtained arrest and search warrants prior to the controlled delivery. Brehm also argued that exigent circumstances did not justify the warrantless entry and arrest and that the subsequent search was therefore unlawful. Brehm did not argue that the officers lacked probable cause to enter Alaimalo's home, however, and the court accepted that there was probable cause "as it [was] undisputed."

Alaimalo appealed his conviction and sentence. Richard Arens, his lawyer on appeal, challenged, among other things, the district court's denial of Alaimalo's motion to suppress. Although Arens did not raise the issue of probable cause in his brief, a panel of this court did consider the matter at oral argument. Ultimately, however, the panel decided to regard the probable cause argument as waived and to affirm the district court's other decisions, including the district court's finding that the officers' entry into Alaimalo's house and the protective sweep were justified by exigent circumstances.

Alaimalo filed pro se his 28 U.S.C. § 2255 habeas petition, which the district court rejected. Alaimalo appealed the court's order and requested a certificate of appealability, which the district court denied. Alaimalo appealed the order of denial, and a two-judge panel granted a certificate of appealability.

III. Standards of Review

We review de novo the denial of a 28 U.S.C. § 2255 application for a writ of habeas corpus. United States v. Day, 285 F.3d 1167, 1169 (9th Cir.2002). We review for clear error the factual findings underlying the denial of a § 2255 motion. United States v. Christakis, 238 F.3d 1164, 1168 (9th Cir.2001). We review de novo the district court's determinations of whether a defendant received ineffective assistance of counsel, id., and whether probable cause existed, United States v. Rojas-Millan, 234 F.3d 464, 468 (9th Cir. 2000).

IV. Discussion

Alaimalo seeks a writ of habeas corpus under 28 U.S.C. § 2255. Under § 2255, a prisoner in custody under the sentence of a court established by Act of Congress can be released upon the ground, among others, that the court imposed the sentence in violation of the Constitution of the United States. Alaimalo is in custody under sentence of the federal District Court of Guam, a court established by an act of Congress. He claims he was denied his right to counsel in violation of the Constitution's Sixth Amendment.

To show a deprivation of the Sixth Amendment right to counsel, Alaimalo must establish both that his lawyer's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Mancuso v. Olivarez, 292 F.3d 939, 953-54 (9th Cir.2002). A "deficient" performance is one that is not reasonably effective, where an objective standard guides judgments of reasonableness. Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. To satisfy Strickland's first prong, the acts or omissions must fall "outside the wide range of professionally competent assistance," id. at 690, 104 S.Ct. 2052; the defendant must show "that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth...