FILED
NOT FOR PUBLICATION
MAY 04 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-16057
Plaintiff - Appellee, D.C. Nos. 4:11-cv-00073-CW
4:09-cr-00640-CW-1
v.
MEMORANDUM*
MARVIN MAURICE CAMPBELL,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, Senior District Judge, Presiding
Argued and Submitted August 12, 2015
San Francisco, California
Before: KOZINSKI and TALLMAN, Circuit Judges, and RAYES,** District
Judge.
AFFIRMED for the reasons stated by the district court.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Douglas L. Rayes, District Judge for the U.S. District
Court for the District of Arizona, sitting by designation.
FILED
United States v. Campbell, 14-16057
MAY 04 2016
RAYES, District Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
Fundamentally, this case is about whether trial counsel gave his client the
information he needed to make an informed decision about whether to forgo a
defense and accept a plea agreement. Because counsel did not understand which
law governed a critical suppression motion, and because such a motion was far
more likely to succeed under the applicable law than under the law that counsel
mistakenly applied, I conclude counsel’s performance was deficient.
“[C]riminal justice today is for the most part a system of pleas, not a system
of trials.” Lafler v. Cooper, 132 S.Ct. 1376, 1388 (2012). The decision to plead
guilty rests squarely with the defendant, and must be made voluntarily and
intelligently because doing so waives important constitutional rights and
protections. Brady v. United States, 397 U.S. 742, 748 (1970). Defendants are
entitled to effective assistance of counsel during this critical process because “an
intelligent assessment of the relative advantages of pleading guilty is frequently
impossible without the assistance of an attorney . . . .” Id. at n.6.
A guilty plea entered before the presentation of evidence necessarily
requires difficult judgments about the strength of the government’s case and any
available defenses, as well as the potential consequences that could follow either a
guilty plea or a jury’s conviction. When making this decision, a defendant relies
on counsel’s informed assessment of the relative benefits and risks of accepting a
plea or going to trial. Thus, among counsel’s responsibilities during this critical
stage is to “supply criminal defendants with necessary and accurate information.”
Iaea v. Sunn, 800 F.2d 861, 865 (9th Cir. 1986).
In 2009, Appellant Marvin Maurice Campbell was indicted on drug and
firearm related charges based entirely on evidence obtained through the warrantless
search of an apartment thought to be his residence. At the time of the search,
Campbell was on probation. The government offered Campbell a plea agreement
and warned that it would use his prior felony drug conviction to enhance his
potential sentence from ten to fifteen years imprisonment if he defended himself in
any way, including filing a suppression motion. Federal law governed the
constitutionality of the search, but Campbell’s counsel mistakenly believed
California law applied. Under California law an officer conducting a probation
search may enter a dwelling if the officer reasonably believes that the probationer
lives there. People v. Downey, 130 Cal. Rptr. 3d 402, 409 (Cal. Ct. App. 2011).
Based on his understanding of California law, Campbell’s counsel believed a
suppression motion was not likely to succeed. He advised Campbell that it would
not be in his best interest to file a suppression motion, given the threat of an
enhanced sentence. Following counsel’s advice, Campbell accepted the plea and
was sentenced to 130 months imprisonment.
Contrary to counsel’s mistaken belief, federal courts apply federal law, not
state law, when assessing the constitutionality of a probation search and the
admissibility of the evidence acquired as a result. See United States v. Chavez-
Vernaza, 844 F.2d 1368, 1373-74 (9th Cir. 1987). Federal courts in this Circuit
apply a “relatively stringent” standard to probation searches, under which an
officer may enter a dwelling only if there is probable cause to believe it is the
probationer’s residence. United States v. Howard, 447 F.3d 1257, 1262 (9th Cir.
2006), overruled in part on other grounds by United States v. King, 687 F.3d 1189
(9th Cir. 2012). Under this higher standard, suppression of the evidence would
have been far more probable.
In Howard, after surveying several of our cases applying the probable cause
standard to uphold probation searches, this Court identified some useful patterns.
In cases upholding the validity of a probation search, “officers had good reason to
believe that [the probationer] was not actually residing at the reported address.”
Howard, 447 F.3d at 1265. In each case, “the officers had directly observed
something that gave them good reason to suspect that the [probationer] was using
his unreported residence as his home base.” Id. at 1265-66. The probationer also
had a key to the residence under investigation. Id. at 1266. Further, in many cases
the probationer or a co-resident identified the residence as that of the probationer.
Id.
Here, the officers knew the apartment was not Campbell’s registered
address. They conducted no surveillance of Campbell’s registered address, and
surveilled the subject apartment for only twenty minutes. During that time, they
observed no convincing signs that Campbell lived there. Nor did Campbell admit
that he lived at the apartment when questioned. The only Howard pattern arguably
observed was that Campbell had a key to the exterior door of the apartment
complex, but apparently not to the apartment itself, as officers had to use force to
enter it. Although a suppression motion based on these facts might have been
unlikely to succeed under California law, it would have been, at the very least, a
close call under this Circuit’s strict probable cause standard.
Campbell filed the instant 28 U.S.C. § 2255 petition in 2011, alleging that
counsel rendered constitutionally deficient performance by mischaracterizing the
merits of a suppression motion based on ignorance of governing law. He contends
that he would not have accepted the plea agreement and, instead, would have
defended against the charges had he known a suppression motion was governed by
a more favorable standard than counsel had advised. Ineffective assistance of
counsel claims are governed by Strickland v. Washington’s two-part test, under
which a petitioner must show both that counsel’s performance was deficient and
that the deficient performance prejudiced his defense. 466 U.S. 668, 687 (1984);
Hill v. Lockhart, 474 U.S. 52, 58 (1985) (“[Strickland] applies to challenges to
guilty pleas based on ineffective assistance of counsel.”). The district court denied
Campbell’s petition after concluding he had failed to satisfy the first prong of this
test. Although the district court acknowledged counsel’s erroneous belief that state
law would apply to a suppression motion, it nonetheless found that counsel’s
advice fell within objectively reasonable standards because “it was not
unreasonable to advise [Campbell] to give up the motion in order to limit the
mandatory portion of his sentence to ten years . . . .”
The error in the district court’s reasoning, which the majority affirms today,
is treating Campbell’s potential exposure to a higher mandatory minimum sentence
as an independent and reasonable justification for counsel’s mistaken advice.
Under these circumstances, where suppression of the evidence would have resulted
in dismissal of the charges, the consequences of filing a suppression motion cannot
so easily be divorced from advice about the likelihood that such a motion would
succeed. Instead, these assessments are two sides of the same coin: the benefits
and risks of accepting a plea or defending against the charges.
Certainly, “[w]aiving trial entails the inherent risk that the good-faith
evaluations of a reasonably competent attorney will turn out to be mistaken either
as to the facts or as to what a court’s judgment might be on given facts.” McMann
v. Richardson, 397 U.S. 759, 770 (1970). “There is no guarantee that the accused
will make the correct decision or that in hindsight such plea will not reflect an error
in fact or judgment.” Johnson v. United States, 539 F.2d 1241, 1243 (9th Cir.
1976). But here we are not confronted with an attorney’s error in fact; we are
confronted with an attorney’s error in law. “An attorney’s ignorance of a point of
law that is fundamental to his case combined with his failure to perform basic
research on that point is a quintessential example of unreasonable performance
under Strickland.” Hinton v. Alabama, 134 S. Ct. 1081, 1089 (2014). I cannot
confidently conclude that Campbell made an informed and intelligent decision in
light of counsel’s ignorance of law and resulting miscalculation of the relative
benefits and risks of accepting the plea or defending against the charges.
Accordingly, I conclude that counsel’s performance fell below objectively
reasonable standards.
In denying Campbell’s petition, the district court reached only the first prong
of Strickland. I would remand for consideration of the second. Specifically, I
would instruct the district court to determine how counsel would have advised his
client had he assessed the merits of a suppression motion under the correct legal
standard, and whether Campbell rationally would have rejected the plea and
defended against the charges had he been so advised.
I respectfully dissent.