Nhat Mai v. Joe McGrath

FILED
AUG 13 2012
NOT FOR PUBLICATION MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NHAT D. MAI, No. 09-15729
Petitioner-Appellant, D.C. No. 3:05-cv-05272-MMC
v. MEMORANDUM*
JOE MCGRATH, Warden,
Respondent-Appellee.
Appeal from United States District Court
for the Northern District of California
Maxine M. Chesney, Senior District Judge, Presiding
Submitted August 8, 2012**
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).
Before: CALLAHAN and WATFORD, Circuit Judges, and SINGLETON,***
Senior District Judge
In 2003 Nhat D. Mai, on the advice of counsel, entered into a negotiated plea
to one count of murder, two counts of attempted murder, and one count of assault
with a deadly weapon in consideration of a stipulated sentence of forty years to life
imprisonment. Mai was convicted and received the agreed upon sentence.
Thereafter Mai sought to set aside his plea based upon allegations of ineffective
assistance of counsel in the state courts and in district court. The state courts and
the district court rejected Mai’s claims.
Because the state courts did not provide a reasoned decision denying Mai’s
ineffective assistance of counsel claim, the district court conducted an independent
review of the record and concluded that the state court’s denial of Mai’s habeas
petition was not an unreasonable application of clearly established federal law. See
Himes v. Thompson, 336 F.3d 848, 852-53 (9th Cir. 2003); 28 U.S.C. § 2254(d).
Having reviewed the decision of the district court de novo and the district court’s
findings of fact for clear error, Brown v. Ornoski, 503 F.3d 1006, 1010 (9th Cir.
2007), we affirm.
***
The Honorable James K. Singleton, Jr., Senior United States District
Judge for the District of Alaska, sitting by designation.
2
To succeed on a claim of ineffective assistance of counsel, Mai must
establish that his plea was involuntary by demonstrating that his counsel’s advice
that caused him to plead guilty fell below “the range of competence demanded of
attorneys in criminal cases.” Hill v. Lockhart, 474 U.S. 52, 56-57 (1985) (citation
omitted) (internal quotation marks omitted).
Mai argues that his counsel should have filed a motion to suppress a
conversation he had with his father, in which he asked his father to provide an alibi
for him and to contact fellow gang members to seek their assistance in intimidating
witnesses. Unknown to Mai or his father, the police recorded this conversation,
which took place at the police station after Mai’s arrest but prior to being formally
charged.1 Although the conversation was in Vietnamese, a Vietnamese speaking
police officer translated the recorded conversation.
Mai contends that this recorded conversation was the strongest evidence
against him and claims that he demanded his attorney file a motion to suppress his
conversation with his father. Three attorneys who represented Mai at various times
all told him such a motion would fail. It is this advice that Mai contends was
deficient and led to his plea. Mai believes that had a motion to suppress been filed,
1
In order to establish the date Mai was formally charged, Appellee
filed a motion requesting that we take judicial notice of the first page of the Felony
Complaint charging Mai. The motion is unopposed and we therefore grant the
motion.
3
it would have been granted, and if granted he would have elected to go to trial. But
federal law governs the inquiry here, and nothing in federal law indicates that a
suppression motion would have succeeded had Mai’s attorney filed one.
The people of California, utilizing the initiative process, have amended the
state constitution to deny California judges jurisdiction to suppress evidence based
upon provisions of state law. Cal. Const., art. I, § 28(f)(2) (Truth-in-Evidence).
Under current California law, motions to suppress must be based upon federal law.
See, e.g., People v. Lessie, 223 P.3d 3, 7 n.2 (Cal. 2010) (noting that California
Constitution’s Truth-in-Evidence provision “generally precludes California courts
from creating new exclusionary rules based on the state Constitution”). Thus, the
California courts considering Mai’s attempt to set aside his plea would have had to
consider the viability of a putative suppression motion under federal law.
The United States Supreme Court has never extended Katz v. United States,
389 U.S. 347 (1967), to create a right to privacy for inmates in jails conversing
with anyone other than their lawyer. The only Supreme Court case directly on
point is Lanza v. New York, 370 U.S. 139, 142-43 (1962) (no right to privacy
within police station). While Lanza preceded Katz, later cases continue to cite
Lanza for the principle that there is no right to privacy in conversations between
people in a jail unless one of them is a retained or appointed lawyer. See, e.g., U.S.
4
v. Hearst, 563 F.2d 1331, 1345 (9th Cir. 1977) (“Post-Katz decisions of this circuit
dealing with jailhouse searches and seizures, however, have treated Katz and Lanza
as compatible.”); People v. Loyd, 45 P.3d 296, 299-301 (Cal. 2002); Donaldson v.
Superior Court, 672 P.2d 110, 112 (Cal. 1983) (noting that a police interview room
is not a protected area for Fourth Amendment purposes).
Given this state of the law, the California courts did not unreasonably apply
Strickland in concluding that any advice by Mai’s attorney on the recorded
statement’s admissibility was competent. Thus, any such advice could not have
rendered Mai’s plea involuntary under Tollett v. Henderson, 411 U.S. 258, 266
(1973).
Mai argues that the police intentionally used his father as an agent to
“interrogate him.” See Rhode Island v. Innis, 446 U.S. 291 (1980). There is no
evidence that the police used Mai’s father as an agent. Mai also makes a Sixth
Amendment claim based upon People v. Burton, 491 P.2d 793 (Cal. 1971),
overruled by Lessie, 223 P.3d at 13. He misreads Burton as holding that
conversations with a parent should be treated as conversations with an attorney. In
any event, Burton “is no longer good law.” Lessie, 223 P.3d at 4. A party may not
predicate a claim of ineffective assistance of counsel on a decision valid at the time
5
that was subsequently overruled. See Lockhart v. Fretwell, 506 U.S. 364, 372-73
(1993).
Finally, Mai contends that counsel’s failure to obtain an interpreter to
translate English into Vietnamese constituted ineffective assistance leading to an
involuntary plea. There is no evidence to suggest that language difficulties
prevented Mai from understanding the nature of the charges and the terms of his
plea agreement. Mai came to the United States when he was seven and attended
public school, eventually graduating from High School in California. His answers
to questions put to him by court and counsel seem responsive. Mai has presented
no evidence that his understanding of English was insufficient to enable him to
enter a knowing, intelligent and voluntary plea. Thus, the California courts did not
unreasonably apply Strickland in concluding that Mai failed to establish ineffective
assistance of counsel on this ground.
Accordingly, the judgment of the district court is AFFIRMED. Appellee’s
motion to take judicial notice is granted.
6