FILED
NOT FOR PUBLICATION FEB 24 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA No. 08-35293
Respondent - Appellee, D.C. Nos. 6:02-cr-60101-AA
6:06-cv-70003-AA
v.
TIMOTHY DEAN SMITH, MEMORANDUM*
Petitioner - Appellant.
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, Chief District Judge, Presiding
Argued and Submitted February 10, 2011
Seattle, Washington
Before: B. FLETCHER, PAEZ, and IKUTA, Circuit Judges.
Timothy Smith appeals the district court’s denial of his 28 U.S.C. § 2255
habeas petition and request for an evidentiary hearing. We have jurisdiction
pursuant to 28 U.S.C. § 1291. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The district court did not err in rejecting Smith’s ineffective assistance of
counsel claim premised on failure to argue that the police lacked consent to search
his entire car, or in denying Smith’s motion for an evidentiary hearing on this claim,
because Smith failed to allege “specific facts which, if true, would entitle him to
relief.” United States v. Howard, 381 F.3d 873, 877 (9th Cir. 2004). Even if
Smith’s claim that he did not consent to a search of the entire car was meritorious,
the district court considering Smith’s suppression motion correctly concluded that
the police had probable cause to conduct a warrantless search of his truck, based on
the following: (1) the “Attempt to Locate” alert for a man meeting Smith’s
description and a royal blue Dodge Dakota pickup, which were suspected of
involvement in a string of burglaries; (2) an off-duty officer’s observation of Smith
“casing” residences in a royal blue Dodge Dakota pickup; and (3) the arresting
officer’s detection of a Sawzall and three screwdrivers, tools of the kind he knew
burglars use to enter buildings, during a limited search that Smith admits was
consensual. See United States v. Brooks, 610 F.3d 1186, 1193 (9th Cir. 2010);
United States v. Gonzales, 749 F.2d 1329, 1337 (9th Cir. 1984). Because the
district court correctly denied Smith’s suppression motion on this alternate ground,
any error by Smith’s counsel in raising Smith’s lack of consent claim would not
have affected the outcome of the suppression motion. Therefore, Smith’s
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ineffective assistance of counsel claim cannot prevail. Strickland v. Washington,
466 U.S. 668, 694 (1984).
The district court also did not err in denying Smith’s claim that his trial
counsel rendered ineffective assistance by failing to investigate, obtain, and present
additional evidence that his prior burglary conviction did not qualify as a violent
felony under the Armed Career Criminal Act. See generally Taylor v. United
States, 495 U.S. 575, 601–02 (1990). The Supreme Court has not indicated that
evidence outside the narrow category of documents permitted by Taylor and
Shepard v. United States, 544 U.S. 13, 26 (2005), may be presented by the defense,
and therefore Smith’s proffered evidence was plainly inadmissible. See United
States v. Corona-Sanchez, 291 F.3d 1201, 1211 (9th Cir. 2002) (en banc),
superseded on other grounds by U.S.S.G. § 2L1.2, cmt. n.4 (2002); United States v.
Pallares-Galan, 359 F.3d 1088, 1099 (9th Cir. 2004). Nor did Smith have a due
process right to conduct the sort of “evidentiary enquir[y] into the factual basis for
the earlier conviction,” Shepard, 544 U.S. at 20, that the Court rejected in Taylor
and again in Shepard. Accordingly, counsel’s representation was not deficient
relative to extant professional norms. Strickland, 466 U.S. at 687–88.
AFFIRMED.
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