                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           MAY 04 2016
                   UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-16057

              Plaintiff - Appellee,              D.C. Nos.    4:11-cv-00073-CW
                                                              4:09-cr-00640-CW-1
 v.
                                                 MEMORANDUM*
MARVIN MAURICE CAMPBELL,

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Northern District of California
                  Claudia Wilken, Senior District Judge, Presiding

                      Argued and Submitted August 12, 2015
                            San Francisco, California

Before:       KOZINSKI and TALLMAN, Circuit Judges, and RAYES,** District
              Judge.

      AFFIRMED for the reasons stated by the district court.




          *
          This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
          The Honorable Douglas L. Rayes, District Judge for the U.S. District
Court for the District of Arizona, sitting by designation.
                                                                            FILED
United States v. Campbell, 14-16057
                                                                             MAY 04 2016

RAYES, District Judge, dissenting:                                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS




      Fundamentally, this case is about whether trial counsel gave his client the

information he needed to make an informed decision about whether to forgo a

defense and accept a plea agreement. Because counsel did not understand which

law governed a critical suppression motion, and because such a motion was far

more likely to succeed under the applicable law than under the law that counsel

mistakenly applied, I conclude counsel’s performance was deficient.

      “[C]riminal justice today is for the most part a system of pleas, not a system

of trials.” Lafler v. Cooper, 132 S.Ct. 1376, 1388 (2012). The decision to plead

guilty rests squarely with the defendant, and must be made voluntarily and

intelligently because doing so waives important constitutional rights and

protections. Brady v. United States, 397 U.S. 742, 748 (1970). Defendants are

entitled to effective assistance of counsel during this critical process because “an

intelligent assessment of the relative advantages of pleading guilty is frequently

impossible without the assistance of an attorney . . . .” Id. at n.6.

      A guilty plea entered before the presentation of evidence necessarily

requires difficult judgments about the strength of the government’s case and any

available defenses, as well as the potential consequences that could follow either a
guilty plea or a jury’s conviction. When making this decision, a defendant relies

on counsel’s informed assessment of the relative benefits and risks of accepting a

plea or going to trial. Thus, among counsel’s responsibilities during this critical

stage is to “supply criminal defendants with necessary and accurate information.”

Iaea v. Sunn, 800 F.2d 861, 865 (9th Cir. 1986).

      In 2009, Appellant Marvin Maurice Campbell was indicted on drug and

firearm related charges based entirely on evidence obtained through the warrantless

search of an apartment thought to be his residence. At the time of the search,

Campbell was on probation. The government offered Campbell a plea agreement

and warned that it would use his prior felony drug conviction to enhance his

potential sentence from ten to fifteen years imprisonment if he defended himself in

any way, including filing a suppression motion. Federal law governed the

constitutionality of the search, but Campbell’s counsel mistakenly believed

California law applied. Under California law an officer conducting a probation

search may enter a dwelling if the officer reasonably believes that the probationer

lives there. People v. Downey, 130 Cal. Rptr. 3d 402, 409 (Cal. Ct. App. 2011).

Based on his understanding of California law, Campbell’s counsel believed a

suppression motion was not likely to succeed. He advised Campbell that it would

not be in his best interest to file a suppression motion, given the threat of an
enhanced sentence. Following counsel’s advice, Campbell accepted the plea and

was sentenced to 130 months imprisonment.

      Contrary to counsel’s mistaken belief, federal courts apply federal law, not

state law, when assessing the constitutionality of a probation search and the

admissibility of the evidence acquired as a result. See United States v. Chavez-

Vernaza, 844 F.2d 1368, 1373-74 (9th Cir. 1987). Federal courts in this Circuit

apply a “relatively stringent” standard to probation searches, under which an

officer may enter a dwelling only if there is probable cause to believe it is the

probationer’s residence. United States v. Howard, 447 F.3d 1257, 1262 (9th Cir.

2006), overruled in part on other grounds by United States v. King, 687 F.3d 1189

(9th Cir. 2012). Under this higher standard, suppression of the evidence would

have been far more probable.

      In Howard, after surveying several of our cases applying the probable cause

standard to uphold probation searches, this Court identified some useful patterns.

In cases upholding the validity of a probation search, “officers had good reason to

believe that [the probationer] was not actually residing at the reported address.”

Howard, 447 F.3d at 1265. In each case, “the officers had directly observed

something that gave them good reason to suspect that the [probationer] was using

his unreported residence as his home base.” Id. at 1265-66. The probationer also

had a key to the residence under investigation. Id. at 1266. Further, in many cases
the probationer or a co-resident identified the residence as that of the probationer.

Id.

      Here, the officers knew the apartment was not Campbell’s registered

address. They conducted no surveillance of Campbell’s registered address, and

surveilled the subject apartment for only twenty minutes. During that time, they

observed no convincing signs that Campbell lived there. Nor did Campbell admit

that he lived at the apartment when questioned. The only Howard pattern arguably

observed was that Campbell had a key to the exterior door of the apartment

complex, but apparently not to the apartment itself, as officers had to use force to

enter it. Although a suppression motion based on these facts might have been

unlikely to succeed under California law, it would have been, at the very least, a

close call under this Circuit’s strict probable cause standard.

      Campbell filed the instant 28 U.S.C. § 2255 petition in 2011, alleging that

counsel rendered constitutionally deficient performance by mischaracterizing the

merits of a suppression motion based on ignorance of governing law. He contends

that he would not have accepted the plea agreement and, instead, would have

defended against the charges had he known a suppression motion was governed by

a more favorable standard than counsel had advised. Ineffective assistance of

counsel claims are governed by Strickland v. Washington’s two-part test, under

which a petitioner must show both that counsel’s performance was deficient and
that the deficient performance prejudiced his defense. 466 U.S. 668, 687 (1984);

Hill v. Lockhart, 474 U.S. 52, 58 (1985) (“[Strickland] applies to challenges to

guilty pleas based on ineffective assistance of counsel.”). The district court denied

Campbell’s petition after concluding he had failed to satisfy the first prong of this

test. Although the district court acknowledged counsel’s erroneous belief that state

law would apply to a suppression motion, it nonetheless found that counsel’s

advice fell within objectively reasonable standards because “it was not

unreasonable to advise [Campbell] to give up the motion in order to limit the

mandatory portion of his sentence to ten years . . . .”

      The error in the district court’s reasoning, which the majority affirms today,

is treating Campbell’s potential exposure to a higher mandatory minimum sentence

as an independent and reasonable justification for counsel’s mistaken advice.

Under these circumstances, where suppression of the evidence would have resulted

in dismissal of the charges, the consequences of filing a suppression motion cannot

so easily be divorced from advice about the likelihood that such a motion would

succeed. Instead, these assessments are two sides of the same coin: the benefits

and risks of accepting a plea or defending against the charges.

      Certainly, “[w]aiving trial entails the inherent risk that the good-faith

evaluations of a reasonably competent attorney will turn out to be mistaken either

as to the facts or as to what a court’s judgment might be on given facts.” McMann
v. Richardson, 397 U.S. 759, 770 (1970). “There is no guarantee that the accused

will make the correct decision or that in hindsight such plea will not reflect an error

in fact or judgment.” Johnson v. United States, 539 F.2d 1241, 1243 (9th Cir.

1976). But here we are not confronted with an attorney’s error in fact; we are

confronted with an attorney’s error in law. “An attorney’s ignorance of a point of

law that is fundamental to his case combined with his failure to perform basic

research on that point is a quintessential example of unreasonable performance

under Strickland.” Hinton v. Alabama, 134 S. Ct. 1081, 1089 (2014). I cannot

confidently conclude that Campbell made an informed and intelligent decision in

light of counsel’s ignorance of law and resulting miscalculation of the relative

benefits and risks of accepting the plea or defending against the charges.

Accordingly, I conclude that counsel’s performance fell below objectively

reasonable standards.

      In denying Campbell’s petition, the district court reached only the first prong

of Strickland. I would remand for consideration of the second. Specifically, I

would instruct the district court to determine how counsel would have advised his

client had he assessed the merits of a suppression motion under the correct legal

standard, and whether Campbell rationally would have rejected the plea and

defended against the charges had he been so advised.

      I respectfully dissent.
