United States v. Santos Murillo

FILED
NOT FOR PUBLICATION JUN 20 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-35598
Plaintiff - Appellee, D.C. Nos. 2:10-cv-03113-WFN
2:05-cr-02118-WFN-1
v.
SANTOS PETER MURILLO, AKA Peter MEMORANDUM*
Santos Murillo,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Wm. Fremming Nielsen, Senior District Judge, Presiding
Submitted June 6, 2012**
Seattle, Washington
Before: SILVERMAN and MURGUIA, Circuit Judges, and HALL, District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Janet C. Hall, District Judge for the U.S. District Court
for Connecticut, sitting by designation.
Petitioner Santos Peter Murillo (“Murillo”) seeks habeas relief pursuant to
28 U.S.C. § 2255, claiming that his trial counsel rendered ineffective assistance in
failing to argue that two prior offenses in his presentence report – a gun charge and
a harassment charge, which occurred on the same day – should have been
considered related and treated as a single case for computation of his criminal
history. He claims that if the offenses had been treated as related, he would have
had a criminal history category of III instead of IV and, therefore, would likely
have received a lower sentence.
This Court reviews a district court’s denial of habeas relief pursuant to 28
U.S.C. §2255 de novo. Lopez v. Schriro, 491 F.3d 1029, 1036 (9th Cir. 2007). To
establish ineffective assistance of counsel, a petitioner has to show that counsel’s
representation fell below an objective standard of reasonableness; he must establish
both that his counsel’s performance was deficient and that the deficient
performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687-
88 (1984). The second prong of Strickland is met when there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different. See United States v. Fredman, 390 F.3d 1153, 1156
(9th Cir. 2004).
2
At the time Murillo was sentenced, the United States Sentencing Guidelines
provided that “[p]rior sentences are not considered related if they were for offenses
that were separated by an intervening arrest.” U.S.S.G. §4A1.2 Application Note 3
(Nov. 1, 2006 ed.). “If an intervening arrest did separate the offenses, our inquiry
is over: the offenses are unrelated for the purposes of the Guidelines.” United
States v. Asberry, 394 F.3d 712, 719 (9th Cir. 2005). An arrest is intervening if it
occurs between and separates the conduct underlying two convictions. Id. at 718.
Here, the gun offense was discovered in a search incident to an arrest on a prior
warrant. It is reasonable to infer that the arrest encompassed the gun possession
offense, because he was transported to the police station and booked into jail
following the discovery of the gun offense. See United States v. Leal-Felix, 665
F.3d 1037, 1041 (9th Cir. 2011) (holding that a formal arrest may be indicated by
informing the suspect that he is under arrest, transporting the suspect to the police
station, and/or booking the suspect into jail). The arrest interrupted the conduct
underlying Murillo’s prior gun possession charge and the harassment, which
occurred later the same day. Because there appears to have been an intervening
arrest, the two offenses were separate, so that the performance of Murillo’s counsel
did not fall below an objective standard of reasonableness in failing to object to the
correctly calculated criminal history category.
3
Although an argument can be made that the arrest here was not intervening
because it preceded the discovery of the gun offense, this is at best an unclear area
of the law. Given the lack of clarity in the law concerning whether the arrest in
this case could be considered intervening, Murillo cannot establish that his counsel
was objectively unreasonable in failing to object to the presentence report. Se,
Lockhart v. Fretwell, 506 U.S. 364, 371 (1993) (holding that whether performance
of counsel was deficient is based upon the law as it existed at the time); Davie v.
Mitchell, 547 F.3d 297, 315 (6th Cir. 2008); Lucas v. Johnson, 132 F.3d 1069,
1078 (5th Cir. 1998). Nor can he establish a reasonable probability that if his
counsel had objected, the court would have treated the two offenses as related.
AFFIRMED.
4