928 F. 2d 1137 - Montalvo v. United States

MEMORANDUM**

Michael L. Montalvo, a federal prisoner, appeals pro se the district court's dismissal of his 28 U.S.C. Sec. 2255 motion.1 We review de novo, Iaea v. Sunn, 800 F.2d 861, 864 (9th Cir.1986), and we affirm.

Montalvo contends that he received ineffective assistance because his attorney convinced him to seek a trial continuance based on meritless defenses, instructed him to waive a jury trial, and instructed him to stipulate to certain facts. This contention lacks merit.

To demonstrate ineffective assistance, a defendant must show that his attorney's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient performance is demonstrated when "counsel made errors so serious that the counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. There is a strong presumption that counsel's conduct falls within "the wide range of reasonable professional assistance." Id. at 689. Prejudice is established if there is a reasonable probability that but for the counsel's error, the result of the proceeding would have been different. Id. at 694. A tactical decision by counsel with which the defendant disagrees cannot form the basis of a claim of ineffective assistance of counsel. Guam v. Santos, 741 F.2d 1167, 1169 (9th Cir.1984).

Here, counsel's decisions to seek a trial continuance, to recommend waiver of a jury trial, and to stipulate to certain facts were reasoned tactical moves.2 Furthermore, the record demonstrates that Montalvo knowingly waived his right to a jury trial, stipulated to the facts, and acquiesced in his attorney's tactical decisions. Montalvo's subsequent disagreement with his attorney's strategies does not constitute ineffective assistance. See Guam, 741 F.2d at 1169.

Montalvo also contends he received ineffective assistance of counsel because although he advised his attorney that his prosecution and conviction were the result of an illegal search, the attorney failed to file a suppression motion. This contention lacks merit. Where an illegal search does no more than trigger a dormant investigation, the resulting case is not the fruit of an illegal search. See Wong Sun v. United States, 371 U.S. 471, 487-88 (1963); United States v. Aguilar, 883 F.2d 662, 708 (9th Cir.1989), cert. denied, 111 S.Ct. 751 (1991). Here, the evidence obtained by the allegedly illegal search was not used in Montalvo's case; it was used to trigger a dormant investigation of Montalvo. Thus, even if Montalvo's attorney failed to file a suppression motion, Montalvo was not prejudiced. Strickland, 466 U.S. at 694.3 Montalvo also raises a litany of other claims challenging the assistance of counsel.⁴ We have examined these claims and find them meritless.

Montalvo's contention that the district court erred by failing to hold an evidentiary hearing also lacks merit. A district court may deny a section 2255 motion without an evidentiary hearing only if the movant's allegations, viewed against the record, either do not state a claim for relief or are so palpably incredible or patently frivolous as to warrant summary dismissal. Marrow v. United States, 772 F.2d 525, 526 (9th Cir.1985); Bauman v. United States, 692 F.2d 565, 570-71 (9th Cir.1982). Because Montalvo's claims of ineffective assistance of counsel do not state a claim for relief, an evidentiary hearing was not necessary and the district court properly denied Montalvo's section 2255 motion.