FILED
NOT FOR PUBLICATION FEB 08 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-30443
Plaintiff - Appellee, D.C. No. 3:07-cr-00207-KI
v.
MEMORANDUM *
MICHAEL THOMAS COTTRELL,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Oregon
Garr M. King, Senior District Judge, Presiding
Submitted February 4, 2010 **
Seattle, Washington
Before: RYMER, GOULD and BYBEE, Circuit Judges.
Michael Cottrell pleaded guilty to one count of unarmed bank robbery in
violation of 18 U.S.C. § 2113(a) and now appeals the forty-six-month sentence
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
imposed by the district court. We have jurisdiction pursuant to 28 U.S.C. § 1291
and affirm the sentence.
Cottrell elected to represent himself during the sentencing proceedings and
submitted three sets of objections to the presentence investigation report (PSR).
Many of these objections related to the allegedly-inaccurate narrative descriptions
of his prior criminal convictions. Cottrell requested copies of the police reports
that had been used to compile the PSR. His aim was to demonstrate the
inaccuracies that he perceived, but the district court denied that request. Cottrell
also objected to the limitations he faced, as an in-custody defendant, on access to
legal phone calls, photocopies, the law library, and other legal materials.
Cottrell first argues that the performance of his advisory attorney violated
Cottrell’s Sixth Amendment right to the effective assistance of counsel by not
procuring the police reports for Cottrell. Ineffective assistance claims are generally
not reviewed on direct appeal because they usually lack “a sufficient evidentiary
record as to what counsel did, why it was done, and what, if any, prejudice
resulted.” United States v. Mohsen, 587 F.3d 1028, 1033 (9th Cir. 2009). Here,
there is no record of the efforts that Cottrell’s advisory counsel made in response to
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Cottrell’s requests, so the record is insufficient to permit review. We therefore
decline to consider the ineffective assistance claim on direct appeal. Id.1
Cottrell’s second claim is that the district court violated his due process
rights by denying his motion to discover the police reports. Under Brady v.
Maryland, 373 U.S. 83 (1963), Cottrell had a right to the police reports if they
were material and favorable to him. Id. at 87. The police reports are material “if
there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.” Strickler v.
Greene, 527 U.S. 263, 280 (1999). Even if these reports might be considered in
any degree exculpatory or favorable to Cottrell, Cottrell has not shown that the
police reports were material to the sentence he received. The district court
considered Cottrell’s objections to the narrative descriptions of his prior
convictions, and said that “none of them would affect the advisory guideline
calculations or [Cottrell’s] sentence, and they are based on factual information.”
The district court accepted the existence of the convictions, but did not rely on the
1
Because we decline to consider the ineffective assistance claim for want of
an adequate record on direct appeal, we have no occasion to decide whether a Sixth
Amendment claim of ineffective assistance of counsel may be made with regard to
the work or oversight of an “advisory” or a “standby” counsel where there is no
claim that Cottrell’s decision to represent himself was involuntary. See Williams v.
Stewart, 441 F.3d 1030, 1047 n.6 (9th Cir. 2006) (per curiam) (citing Faretta v.
California, 422 U.S. 806, 834 n.46 (1975)).
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allegedly-inaccurate narrative descriptions in determining Cottrell’s sentence under
the Sentencing Guidelines or 18 U.S.C. § 3553. The narrative descriptions did not
increase Cottrell’s sentence, so the underlying police reports were not “material . . .
to punishment” under Brady. Brady, 373 U.S. at 87. Accordingly, we reject
Cottrell’s second claim.
Cottrell’s final claim of error is that he was denied access to legal materials
and to the courts in violation of the First and Sixth Amendments. See Lewis v.
Casey, 518 U.S. 343, 384 (1996) (holding the fundamental right of access to the
courts means “the opportunity to prepare, serve and file whatever pleadings or
other documents are necessary . . . [in] court proceedings affecting one’s personal
liberty”) (quoting Hatfield v. Bailleaux, 290 F.2d 632, 637 (9th Cir. 1961), cert.
denied, 368 U.S. 862 (1961); United States v. Sarno, 73 F.3d 1470, 1491 (9th Cir.
1995) (discussing pro se defendant’s Sixth Amendment right of access to materials
to prepare a defense). There is no violation of these rights where the defendant is
given reasonable access to legal tools and has the opportunity to present all of his
nonfrivolous claims to the court. Lewis, 518 U.S. at 352–53; Sarno, 73 F.3d at
1491–92. Here, Cottrell complains that his rights were violated by delays in
receiving his case file following transfers between detention facilities, loss of
documents during transfer, limitations on legal calls, delays in receiving requested
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photocopies, and limitations on law library access. Despite these limitations,
Cottrell has not demonstrated that he was blocked from having reasonable access
to legal materials necessary to his PSR objections. The district court granted
Cottrell special permission to possess a copy of the PSR and assisted him in
consolidating his case file and obtaining information related to his criminal history.
Cottrell was appointed an investigator and two successive attorneys to act as
standby and then advisory counsel. The legal materials available to Cottrell
allowed him to “present [his] grievances,” see Lewis, 518 U.S. at 360, to the
district court, which overruled Cottrell’s PSR objections not because they were
undeveloped but because they were irrelevant to the determination of his sentence.
There was no violation of Cottrell’s right to access the courts.
AFFIRMED.
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