and Submitted September 14, 2016 San Francisco, California
from the United States District Court for the Northern
District of California, D.C. No. 1:14-cv-01696-NJV Nandor J.
Vadas, Magistrate Judge, Presiding
K. Critchfield (argued), Deputy Attorney General; Peggy S.
Ruffra and Jeffrey M. Laurence, Supervising Deputy Attorneys
General; Office of the Attorney General, San Francisco,
California, for Respondents-Appellants.
Kleven (argued), Law Offices of Paul Kleven, Berkeley,
California, for Petitioner-Appellee.
Before: William A. Fletcher, Morgan B. Christen, and Michelle
T. Friedland, Circuit Judges.
panel reversed the district court's grant of a habeas
corpus petition in which a California state prisoner alleged
that his Sixth Amendment right to effective assistance of
counsel was violated by trial counsel's failure to bring
a pre-plea suppression motion.
panel held that the petitioner's ineffective assistance
of counsel claim is not barred by Tollett v.
Henderson, 411 U.S. 258 (1973), which, properly
understood, does not bar federal habeas claims of pre-plea
ineffective assistance of counsel when the action, or
inaction, of counsel prevents petitioner from making an
informed choice whether to plead. The panel explained that if
the deputies unconstitutionally searched the petitioner's
home, counsel's failure to move to suppress the fruits of
that search prevented him from making an informed choice
whether to plead.
panel wrote that counsel should have moved to suppress the
firearm and ammunition found in the petitioner's home,
but concluded that the state habeas courts were not
unreasonable in denying the writ because it would have been
reasonable for the state courts to conclude that a motion to
suppress, if brought, would likely have been denied.
FLETCHER, Circuit Judge:
State of California appeals from a grant of habeas corpus to
Petitioner Gregory Mahrt. The district court found that
Mahrt's state-court guilty plea rested on a violation of
his Sixth Amendment right to effective assistance of counsel.
For the reasons that follow, we reverse.
September 3, 2012, at approximately 10:00 p.m., Sonoma County
Sheriff's deputies were dispatched to a residence in
Petaluma, California. A neighbor had reported that a
"male and female subject [were] arguing over a
gun." The property was owned by Robyn Ryan, the mother
of Petitioner-Appellee Gregory Mahrt's ex-girlfriend,
Tracy Ryan. Mahrt was living in a garage on the property that
had been converted into a room.
deputies approached the property, Mahrt walked out and met
them at the front gate. The deputies detained Mahrt and asked
about the argument and the gun. In a written
"Incident/Investigation Report, " Deputy Yoder
described Mahrt as initially "uncooperative."
According to Deputy Yoder's report, Mahrt told the
deputies that Tracy had left before they arrived. Robyn Ryan
stated in a sworn declaration that she likewise had informed
the deputies that Tracy had "left the area" before
they arrived, and that she had provided this information to
the deputies before any search.
deputies conducted what Deputy Yoder's report
characterizes as a "protective sweep" of
Mahrt's room in the garage. According to the report, the
deputies felt justified in conducting this warrantless search
"[d]ue to the report of the possible domestic incident
and the mention of a deadly weapon" and because Mahrt
"may [have been] attempting to conceal a victim
inside." As the deputies approached the garage, Mahrt
"began yelling that he did not want [the officers] to
enter his room." The deputies found no one inside
to the report, the deputies observed ammunition cans,
ammunition, and what appeared to be an AR-15 Rifle (later
determined to be a replica). Upon determining that no one was
in the room, and after observing the firearm-related