Wolf v. Smith

Filing 103

MEMORANDUM DECISION AND ORDER denying 95 Petitioner's Motion for Appointment of Counsel; denying 96 Petitioner's Motion for Evidentiary Hearing; denying 98 Petitioner's Motion to Supplement Reply; granting 101 Respondent's Motion for Extension of Time to File Response; denying 11 Amended Petition for Writ of Habeas Corpus and this entire action is DISMISSED with prejudice. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

ANDREW J. J. WOLF,
Petitioner,

Case No. 1:11-cv-00404-EJL
MEMORANDUM DECISION AND
ORDER

v.
BRENT REINKE, Director of the Idaho
Department of Correction; and
LAWRENCE WASDEN, Attorney
General;
Respondents.

Pending before the Court is Petitioner Andrew J. J. Wolf’s Amended Petition for
Writ of Habeas Corpus (Dkt. 11). The Court previously dismissed all of Petitioner’s
claims, other than Claim 1, as procedurally defaulted. (Dkt. 67.) Respondent has filed an
Answer and Brief in Support of Dismissal of Claim 1. (Dkt. 88.) Petitioner has filed a
Reply, as well as a Motion to Supplement his Reply, a Motion for Appointment of Counsel,
and a Motion for Evidentiary Hearing. (Dkt. 94, 95, 96). All of these motions are ripe for

MEMORANDUM DECISION AND ORDER - 1

adjudication.1 The Court takes judicial notice of the records from Petitioner’s state court
proceedings, lodged by Respondent on January 18, 2012 and June 28, 2012. (Dkt. 16, 32.)
See Fed. R. Evid. 201(b); Dawson v. Mahoney, 451 F.3d 550, 551 (9th Cir. 2006).
Having carefully reviewed the record, including the state court record, the Court
finds that the parties have adequately presented the facts and legal arguments in the briefs
and record and that the decisional process would not be significantly aided by oral
argument. Therefore, the Court will decide this matter on the written motions, briefs and
record without oral argument. D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the
following Order denying the only claim remaining in the Amended Petition and dismissing
this case with prejudice.
BACKGROUND
The facts underlying Petitioner Wolf’s convictions in Ada County Court are set
forth clearly and accurately in Wolf v. Idaho, 266 P.3d 1169 (Idaho Ct. App. 2011), which
is contained in the record at State’s Lodging D-5. “In an online chat room, Wolf solicited
sex from a user named ‘greenmonsterlm07,’ who [sic] Wolf believed to be a
fifteen-year-old boy. Wolf arranged to meet the boy for a sexual encounter. Upon his
arrival at the meeting place, Wolf was greeted by police officers who had been posing as
the boy online.” (State’s Lodging D-5 at 1.)
The police obtained a search warrant for Petitioner’s computer on August 20, 2007;
the warrant was set to expire 14 days later, on September 3, 2007. The same day the
1

The Court will grant Respondents’ Motion for Extension of Time (Dkt. 101) to file a response to
Petitioner’s Motion to Supplement his Reply.

MEMORANDUM DECISION AND ORDER - 2

warrant was issued, Petitioner’s home was searched and his computer seized. The return of
search warrant was filed the next day, on August 21, 2007. (Am. Pet., Dkt. 11, at 10.)
Though the computer was seized within the time period allowed by the warrant, it was not
subjected to a forensic examination until October 2, 2007, nearly a month after the warrant
expired. (State’s Lodging D-5 at 7-8.) Petitioner’s counsel did not seek to suppress any of
the evidence found on the computer.
The forensic examination revealed child pornography on Petitioner’s computer.
Petitioner was charged with enticing children over the internet and possession of sexually
exploitative material, in violation of Idaho Code §§ 18-1509A, 18-1507, and 18-1507A.
Petitioner pleaded guilty to the two charges in exchange for the state’s agreement to limit
its sentencing recommendations and to refrain from charging Petitioner as a persistent
violator. (State’s Lodging A-2 at 4-14; State’s Lodging B-7.)
In state postconviction proceedings, Petitioner argued that his counsel was
ineffective for failing to file a motion to suppress the evidence obtained in the search of the
computer. He argued that (1) that the search warrant was not supported by probable cause,
and (2) even if probable cause did exist, the October 2, 2007 search of the computer was
unlawful because it was conducted more than 14 days after the warrant was issued. (State’s
Lodging D-1 & D-4.) The state district court dismissed Petitioner’s postconviction
application, and the Idaho Court of Appeals affirmed. (State’s Lodging D-5.) The Idaho
Supreme Court denied review. (State’s Lodging D-8.)
Petitioner filed the instant habeas action in August 2011. The Court granted
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Respondent’s motion for partial summary dismissal, denied Petitioner’s motion for
reconsideration, and set a merits briefing schedule. (Dkt. 67, 86.) Claim 1—the only
remaining claim—is now ripe for adjudication on the merits.
HABEAS CORPUS STANDARD OF LAW
Federal habeas corpus relief may be granted on claims adjudicated on the merits in a
state court judgment when the federal court determines that the petitioner “is in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).
Under § 2254(d), as amended by the Anti-terrorism and Effective Death Penalty Act of
1996 (“AEDPA”), federal habeas relief is further limited to instances where the state
court’s adjudication of the petitioner’s claim
(1)

resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or

(2)

resulted in a decision that was based on an
unreasonable determination of the facts in light
of the evidence presented in the State court
proceeding.

28 U.S.C. § 2254(d). A state court need not “give reasons before its decision can be
deemed to have been ‘adjudicated on the merits’” under § 2254(d). Harrington v. Richter,
562 U.S. 86, 100 (2011). A federal habeas court reviews the state court’s “last reasoned
decision” in determining whether a petitioner is entitled to relief. Ylst v. Nunnemaker, 501
U.S. 797, 804 (1991).
When a party contests the state court’s legal conclusions, including application of
MEMORANDUM DECISION AND ORDER - 4

the law to the facts, § 2254(d)(1) governs. That section consists of two alternative tests: the
“contrary to” test and the “unreasonable application” test.
Under the first test, a state court’s decision is “contrary to” clearly established
federal law “if the state court applies a rule different from the governing law set forth in
[the Supreme Court’s] cases, or if it decides a case differently than [the Supreme Court]
[has] done on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694
(2002).
Under the second test, to satisfy the “unreasonable application” clause of
§ 2254(d)(1) the petitioner must show that the state court—although identifying “the
correct governing legal rule” from Supreme Court precedent—nonetheless “unreasonably
applie[d] it to the facts of the particular state prisoner’s case.” Williams (Terry) v. Taylor,
529 U.S. 362, 407 (2000). “Section 2254(d)(1) provides a remedy for instances in which a
state court unreasonably applies [Supreme Court] precedent; it does not require state courts
to extend that precedent or license federal courts to treat the failure to do so as error.” White
v. Woodall, 134 S. Ct. 1697, 1706 (2014).
A federal court cannot grant habeas relief simply because it concludes in its
independent judgment that the decision is incorrect or wrong; rather, the state court’s
application of federal law must be objectively unreasonable to warrant relief. Lockyer v.
Andrade, 538 U.S. 63, 75 (2003); Bell, 535 U.S. at 694. If there is any possibility that
fairminded jurists could disagree on the correctness of the state court’s decision, then relief
is not warranted under § 2254(d)(1). Richter, 562 U.S. at 102. The Supreme Court
MEMORANDUM DECISION AND ORDER - 5

emphasized that “even a strong case for relief does not mean the state court’s contrary
conclusion was unreasonable.” Id. (internal citation omitted).
Though the source of clearly established federal law must come from the holdings
of the United States Supreme Court, circuit precedent may be persuasive authority for
determining whether a state court decision is an unreasonable application of Supreme
Court precedent. Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 1999). However,
circuit law may not be used “to refine or sharpen a general principle of Supreme Court
jurisprudence into a specific legal rule that th[e] Court has not announced.” Marshall v.
Rodgers, 133 S. Ct. 1446, 1450 (2013).
As to the facts, the United States Supreme Court has clarified “that review under §
2254(d)(1) is limited to the record that was before the state court that adjudicated the claim
on the merits.” Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011). This means that
evidence not presented to the state court may not be introduced on federal habeas review if
a claim was adjudicated on the merits in state court and if the underlying factual
determination of the state court was not unreasonable. See Murray v. Schriro, 745 F.3d
984, 999 (9th Cir. 2014).
When a petitioner contests the reasonableness of the state court’s factual
determinations, a federal court must undertake a § 2254(d)(2) analysis. To be eligible for
relief under § 2254(d)(2), the petitioner must show that the state court decision was “based
on an unreasonable determination of the facts in light of the evidence presented in the State
court proceeding.” The United States Supreme Court has admonished that a “state-court
MEMORANDUM DECISION AND ORDER - 6

factual determination is not unreasonable merely because the federal habeas court would
have reached a different conclusion in the first instance.” Wood v. Allen, 130 S. Ct. 841,
849 (2010).
The United States Court of Appeals for the Ninth Circuit has identified five types of
unreasonable factual determinations that result from procedural flaws that occurred in state
court proceedings: (1) when state courts fail to make a finding of fact; (2) when courts
mistakenly make factual findings under the wrong legal standard; (3) when “the
fact-finding process itself is defective,” such as when a state court “makes evidentiary
findings without holding a hearing”; (4) when courts “plainly misapprehend or misstate the
record in making their findings, and the misapprehension goes to a material factual issue
that is central to petitioner’s claim”; or (5) when “the state court has before it, yet
apparently ignores, evidence that supports petitioner’s claim.” Taylor v. Maddox, 366 F.3d.
992, 1000-01 (9th Cir. 2004). State court findings of fact are presumed to be correct, and
the petitioner has the burden of rebutting this presumption by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1).
If the state appellate court did not decide a properly-asserted federal claim, if the
state court’s factual findings are unreasonable under § 2254(d)(2), or if an adequate excuse
for the procedural default of a claim exists, then § 2254(d)(1) does not apply, and the
federal district court reviews the claim de novo. Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th
Cir. 2002). In such a case, as in the pre-AEDPA era, a district court can draw from both
United States Supreme Court and well as circuit precedent, limited only by the
MEMORANDUM DECISION AND ORDER - 7

non-retroactivity rule of Teague v. Lane, 489 U.S. 288 (1989).
Under de novo review, if the factual findings of the state court are not unreasonable,
the Court must apply the presumption of correctness found in 28 U.S.C. § 2254(e)(1) to
any facts found by the state courts. Pirtle, 313 F.3d at 1167. Contrarily, if a state court
factual determination is unreasonable, or if there are no state court factual findings, the
federal court is not limited by § 2254(d)(1). Rather, the federal district court may consider
evidence outside the state court record, except to the extent that § 2254(e)(2) might apply.
Murray v. Schriro, 745 F.3d 984, 1000 (9th Cir. 2014).
PENDING MOTIONS FILED BY PETITIONER
1.

Motion for Appointment of Counsel
Petitioner has filed a Motion for Appointment of Counsel. There is no constitutional

right to counsel in a habeas corpus action. Coleman v. Thompson, 501 U.S. 722, 755
(1991). A habeas petitioner has a right to counsel, as provided by rule, if an evidentiary
hearing is required in his case. See Rule 8(c) of the Rules Governing Section 2254 Cases.
In addition, the Court may exercise its discretion to appoint counsel for an indigent
petitioner in any case where required by the interests of justice. 28 U.S.C. ' 2254(h); 18
U.S.C. ' 3006A(a)(2)(B). Whether counsel should be appointed turns on the petitioner=s
ability to articulate his claims in light of the complexity of the legal issues and his
likelihood of success on the merits. See Weygandt v. Look, 718 F.2d 952, 954 (9th Cir.
1983) (per curiam).
As explained below, Petitioner cannot succeed on the merits of Claim 1.
MEMORANDUM DECISION AND ORDER - 8

Additionally, the issues involved with the resolution of Claim 1 are not complex.
Therefore, the Court will presently deny Petitioner’s Motion for Appointment of Counsel.
2.

Motion for Evidentiary Hearing and Motion to Supplement Reply
Because the state courts adjudicated Claim 1 on the merits, no additional evidence

may be considered by this Court. Pinholster, 131 S. Ct. at 1398 (“[R]eview under §
2254(d)(1) is limited to the record that was before the state court that adjudicated the claim
on the merits.”). Therefore, the Court must deny Petitioner’s Motion for Evidentiary
Hearing on Claim 1, as well as his Motion to Supplement his Reply with additional
evidence.
PETITIONER IS NOT ENTITLED TO RELIEF ON CLAIM 1
1.

Clearly-Established Supreme Court Precedent
The Sixth Amendment to the United States Constitution provides that a criminal

defendant has a right to the effective assistance of counsel in his defense. The standard for
ineffective assistance of counsel claims was identified in Strickland v. Washington, 466
U.S. 668 (1984). A petitioner asserting ineffective assistance of counsel must show that (1)
“counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment,” and (2) those errors “deprive[d] the
defendant of a fair trial, a trial whose result is reliable.” Id. at 687.
Whether an attorney’s performance was deficient is judged against an objective
standard of reasonableness. Id. at 687-88. A reviewing court’s inquiry into the
“reasonableness” of counsel’s actions must not rely on hindsight:
MEMORANDUM DECISION AND ORDER - 9

Judicial scrutiny of counsel’s performance must be highly
deferential. It is all too tempting for a defendant to
second-guess counsel’s assistance after conviction or adverse
sentence, and it is all too easy for a court, examining counsel’s
defense after it has proved unsuccessful, to conclude that a
particular act or omission of counsel was unreasonable. A fair
assessment of attorney performance requires that every effort
be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct,
and to evaluate the conduct from counsel’s perspective at the
time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy. There are
countless ways to provide effective assistance in any given
case. Even the best criminal defense attorneys would not
defend a particular client in the same way.
Id. at 689 (internal citations and quotation marks omitted).
Strategic decisions, such as the choice of a defense, “are virtually unchallengeable”
if “made after thorough investigation of law and facts relevant to plausible options.”
Strickland, 466 U.S. at 690. Moreover, an attorney who decides not to investigate a
potential defense theory is not ineffective so long as the decision to forego investigation is
itself objectively reasonable:
[S]trategic choices made after less than complete investigation
are reasonable precisely to the extent that reasonable
professional judgments support the limitations on
investigation. In other words, counsel has a duty to make
reasonable investigations or to make a reasonable decision that
makes particular investigations unnecessary. In any
ineffectiveness case, a particular decision not to investigate
must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to
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counsel’s judgments.
Id. at 690-91.
If a petitioner shows that counsel’s performance was deficient, the next step is the
prejudice analysis. “An error by counsel, even if professionally unreasonable, does not
warrant setting aside the judgment of a criminal proceeding if the error had no effect on the
judgment.” Strickland, 466 U.S. at 691. To satisfy the prejudice standard, a petitioner
“must show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. at 694. As the Strickland
Court instructed:
In making this determination, a court hearing an
ineffectiveness claim must consider the totality of the evidence
before the judge or jury. Some of the factual findings will have
been unaffected by the errors, and factual findings that were
affected will have been affected in different ways. Some errors
will have had a pervasive effect on the inferences to be drawn
from the evidence, altering the entire evidentiary picture, and
some will have had an isolated, trivial effect. Moreover, a
verdict or conclusion only weakly supported by the record is
more likely to have been affected by errors than one with
overwhelming record support. Taking the unaffected findings
as a given, and taking due account of the effect of the errors on
the remaining findings, a court making the prejudice inquiry
must ask if the defendant has met the burden of showing that
the decision reached would reasonably likely have been
different absent the errors.
Id. at 695-96. To constitute Strickland prejudice, “[t]he likelihood of a different result must
be substantial, not just conceivable.” Richter, 562 U.S. at 112.
To show prejudice based on deficient performance of counsel in a case where, as

MEMORANDUM DECISION AND ORDER - 11

here, the petitioner pleaded guilty, the petitioner “must show that there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and would have
insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). Further, to demonstrate
actual prejudice when the ineffective assistance claim is based on counsel’s failure to file a
motion to suppress evidence on Fourth Amendment grounds, the petitioner “must also
prove that his Fourth Amendment claim is meritorious and that there is a reasonable
probability that the verdict would have been different absent the excludable evidence.”
Kimmelman v. Morrison, 477 U.S. 365, 375 (1986).
The Fourth Amendment “requires, as a general matter, that police procure a warrant
before searching or seizing property.” United States v. Ewing, 638 F.3d 1226, 1231 (9th
Cir. 2011). A search warrant must be supported by probable cause. In determining whether
probable cause exists, a reviewing court must consider the totality of the circumstances set
forth in the warrant affidavit. Illinois v. Gates, 462 U.S. 213, 230-31 (1983). “The relevant
inquiry under Gates is whether in light of all the circumstances set forth in the affidavit,
there is a fair probability that contraband or evidence of a crime will be found in a
particular place.” United States v. DeLeon, 979 F.2d 761, 764 (9th Cir. 1992).
When evaluating a claim of ineffective assistance of counsel in a federal habeas
proceeding under § 2254(d)(1), the Court’s review of that claim is “doubly deferential.”
Pinholster, 131 S. Ct. at 1403.

MEMORANDUM DECISION AND ORDER - 12

2.

The Decision of the Idaho Court of Appeals—That Petitioner Could Not
Establish Strickland Prejudice—Was Not Unreasonable
In affirming the dismissal of Petitioner’s postconviction petition, the Idaho Court of

Appeals correctly cited Strickland as the governing precedent for Petitioner’s ineffective
assistance claim. (State’s Lodging D-5 at 3.) Thus, the decision was not “contrary to”
clearly-established Supreme Court law. See Bell, 535 U.S. 685, 694 (2002); 28 U.S.C.
§ 2254(d)(1). The question remains whether that decision was based on an “unreasonable
application” of Supreme Court precedent or an “unreasonable determination of the facts.”
See 28 U.S.C. § 2254(d)(1) & (2).
A.

The Search Warrant Was Supported by Probable Cause

The state court first concluded that the search warrant for Petitioner’s computer was
supported by probable cause and that, therefore, a motion to suppress would not have been
granted on that basis. (Id. at 4-6.) The Court of Appeals relied on the warrant affidavit,
which provided as follows:
Your affiant knows from his experience and training
that adults who engage in sexual activities with minor children
often collect and save child pornography. The Internet is a
prime source for these types of pictures and videos. Your
affiant knows that images and videos, which are stored on
computers, can be recovered during the course of a Forensic
examination.
....
An expert in the forensic examination of computers]
advised your affiant that during his examination of the
computer that he is likely to find a partial record of chats that
the user of the computer has engaged in. The examination will
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likely find other records that identify the user of the computer.
The evidence is needed to help prove the criminal case against
[Petitioner].
(Id. at 5-6 (emphasis added).)
Petitioner has not established that the Idaho Court of Appeals’ decision rejecting
Petitioner’s ineffective assistance claim with respect to his probable cause argument was
based on an unreasonable application of clearly-established Supreme Court precedent or
on an unreasonable determination of the facts.
In determining that a motion to suppress would have been denied with respect to
Petitioner’s probable cause argument, the Idaho Supreme Court reasonably considered the
totality of the circumstances presented in the warrant affidavit, as instructed by Gates. The
warrant affidavit was authored by the police officer who conducted the undercover
operation that led to Petitioner’s arrest and who had both training for, and relevant
experience from, investigating child sex crimes. The affidavit contained specific
quotations from the online chat in which Petitioner explicitly solicited a person, whom he
believed to be a 15-year-old boy, to have sex with him. The affidavit also explained that
Petitioner had admitted engaging in the online chat from the very computer that was seized
and later searched pursuant to the warrant. (Id. at 5.) Under the totality of these
circumstances, the Court concludes that the search warrant was supported by probable
cause and that the Idaho Court of Appeals’ decision does not allow for habeas relief under
AEDPA on that basis.

MEMORANDUM DECISION AND ORDER - 14

B.

The Delay in Searching the Computer Did Not Violate the Fourth
Amendment or Idaho State Law

With respect to Petitioner’s claim that counsel was ineffective for failing to argue
that the delay in the computer search was unconstitutional, the Idaho Court of Appeals
noted that “the Fourth Amendment itself does not contain requirements about when a
search or seizure must occur or the duration of the search, [although] unreasonable delay in
the execution of a warrant that results in a lapse of probable cause will invalidate a
warrant.” (State’s Lodging D-5 at 6-7.) The court was correct—the Fourth Amendment
does not contain a timing requirement for the execution of search warrants.
The Idaho Court of Appeals also noted that Idaho law, as opposed to the Fourth
Amendment, does impose a 14-day time limitation for search warrants. (Id. at 6.) Whether
a violation of the 14-day limitation rendered a search invalid was “a matter of first
impression in Idaho.” (Id. at 7.) The court noted that the initial search of Petitioner’s home
and the seizure of his computer were, indeed, conducted within the 14-day period. The
court also found that the probable cause to support the warrant did not dissipate between
the seizure of the computer and its search. Finally, the court found that the search was
conducted “by an offsite forensic technician who had the training and experience to
complete the search” of Petitioner’s computer. (Id. at 8.) Reasoning that any motion to
suppress the evidence obtained from the search of the computer would have been denied,
the court held that defense counsel was not ineffective for failing to file such a motion. (Id.)
This Court has found no clearly-established Supreme Court precedent holding that

MEMORANDUM DECISION AND ORDER - 15

counsel renders ineffective assistance when he or she fails to move to suppress evidence
obtained pursuant to a search executed one month after the warrant expired—particularly
where that search involved a forensic examination of a computer, which cannot necessarily
be accomplished by qualified personnel within a 14-day time period and which was
actually seized during the appropriate 14-day period. Petitioner suffered no prejudice by
counsel’s failure to move to exclude the evidence under the Fourth Amendment, because
there is no reasonable probability that such a motion would have been granted. See
Strickland, 466 U.S. at 694.
Petitioner also did not suffer prejudice from counsel’s failure to move to exclude the
evidence under Idaho law, because the Idaho Court of Appeals—whose interpretation of
state law is binding on this Court—determined that any such motion would have been
denied. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“[A] state court’s interpretation
of state law, including one announced on direct appeal of the challenged conviction, binds
a federal court sitting in habeas corpus.”).2
Because Petitioner cannot show that the state court of appeals unreasonably
determined that the motion to suppress based on the search delay would have been denied,
he necessarily cannot show that the state court’s rejection of his claim of Strickland
The Court rejects any implication by Respondents that Claim 1 fails because it asserts a violation of
state law. (Answer, Dkt. 88, at 15.) Though Respondents are correct that violations of state law are not
cognizable in federal habeas proceedings, this argument misses the point. Claim 1 does not assert an
independent state law violation with respect to the search of the computer. Rather, Claim 1 asserts that
Petitioner’s Sixth Amendment right to effective assistance of counsel was violated because defense counsel
did not argue that the warrant had expired under state law. That is obviously a federal claim, and it fails on
the merits for the reasons stated above—because under state law the evidence would not have been
suppressed—not because it asserts a violation of state law.

2

MEMORANDUM DECISION AND ORDER - 16

prejudice was unreasonable. Additionally, Petitioner has not established that any factual
finding of the state court was unreasonable.
CONCLUSION
Claim 1 of the Amended Petition fails on the merits because Petitioner has not
shown a reasonable probability that a motion to suppress would have been granted.
Kimmelman, 477 U.S. at 375; Strickland, 466 U.S. at 694.
Because all of Petitioner’s other habeas claims have already been dismissed, the
Court will enter judgment in favor of Respondents and dismiss this case with prejudice.
ORDER
IT IS ORDERED:
1.

Petitioner’s Motion for Appointment of Counsel (Dkt. 95) is DENIED.

2.

Petitioner’s Motion for Evidentiary Hearing (Dkt. 96) is DENIED.

3.

Petitioner’s Motion to Supplement Reply (Dkt. 98) is DENIED.

4.

Respondents’ Motion for Extension of Time to file their response to
Petitioner’s motion to supplement (Dkt. 101) is GRANTED.

5.

The Amended Petition for Writ of Habeas Corpus (Dkt. 11) is DENIED, and
this entire action is DISMISSED with prejudice.

6.

The Court does not find its resolution of this habeas matter to be reasonably
debatable, and a certificate of appealability will not issue. See 28 U.S.C.
§ 2253(c); Habeas Rule 11. If Petitioner wishes to appeal, he must file a
timely notice of appeal with the Clerk of Court. Petitioner may seek a

MEMORANDUM DECISION AND ORDER - 17

certificate of appealability from the Ninth Circuit by filing a request in that
court.

DATED: May 26, 2015

_________________________
Edward J. Lodge
United States District Judge

MEMORANDUM DECISION AND ORDER - 18