Larry Farris, III v. George Stratton ( 2010 )

FILED
NOT FOR PUBLICATION JUN 23 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
LARRY JOHN FARRIS, III, No. 08-16403
Petitioner - Appellant, D.C. No. 1:04-cv-01758-GEB-
KJM
v.
GEORGE STRATTON, Acting Warden; MEMORANDUM *
SCOTT M. KERNAN,
Respondents - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding
Submitted June 15, 2010 **
San Francisco, California
Before: O’SCANNLAIN, TASHIMA, and BEA, Circuit Judges.
Larry John Farris, III, pled guilty in state court to two counts of robbery and
admitted use of a firearm in exchange for a stipulated sentence of fourteen years.
*
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).
He did not appeal his conviction. After unsuccessfully pursuing state
postconviction relief, Farris filed an amended petition for a writ of habeas corpus
under 28 U.S.C. § 2254, claiming ineffective assistance of counsel. The district
court, adopting the findings and recommendations of the magistrate judge, denied
his petition. The district court granted a certificate of appealability and Farris
timely appealed.
The state court did not unreasonably conclude that Farris failed to establish
prejudice from counsel’s performance. See 28 U.S.C. § 2254(d)(1)-(2); Strickland
v. Washington, 466 U.S. 668, 687 (1984). Farris presented no evidence before the
state court that he would not have pled guilty but for counsel’s alleged errors. See
Hill v. Lockhart, 474 U.S. 52, 59 (2005). Even considering the testimony
presented at the federal evidentiary hearing, Knowles v. Mirzayance, 129 S. Ct.
1411, 1419 n.2 (2009), the state court’s conclusion was not unreasonable.
Moreover, Farris has not established that counsel performed deficiently.
Strickland, 466 U.S. at 687. Farris argues that counsel should have filed a motion
to suppress because some of the evidence against him was discovered pursuant to
an invalid search warrant. But it is apparent counsel decided not to file the motion
for strategic reasons, which are “virtually unchallengeable.” Strickland, 466 U.S.
at 690. Furthermore, counsel’s strategy was reasonable. The prosecutor would
2
likely have withdrawn a favorable plea offer upon the filing of a motion to
suppress, and that motion had little chance of success because of the good faith
exception to the exclusionary rule. United States v. Mendonsa, 989 F.2d 366, 367-
70 (9th Cir. 1993).
For these reasons, the judgment of the district court is AFFIRMED.
3