                                                                              FILED
                           NOT FOR PUBLICATION                                 FEB 24 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA                         No. 08-35293

              Respondent - Appellee,             D.C. Nos.    6:02-cr-60101-AA
                                                              6:06-cv-70003-AA
  v.

TIMOTHY DEAN SMITH,                              MEMORANDUM*

              Petitioner - Appellant.


                   Appeal from the United States District Court
                            for the District of Oregon
                   Ann L. Aiken, Chief District Judge, Presiding

                     Argued and Submitted February 10, 2011
                               Seattle, Washington

Before: B. FLETCHER, PAEZ, and IKUTA, Circuit Judges.

       Timothy Smith appeals the district court’s denial of his 28 U.S.C. § 2255

habeas petition and request for an evidentiary hearing. We have jurisdiction

pursuant to 28 U.S.C. § 1291. We affirm.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The district court did not err in rejecting Smith’s ineffective assistance of

counsel claim premised on failure to argue that the police lacked consent to search

his entire car, or in denying Smith’s motion for an evidentiary hearing on this claim,

because Smith failed to allege “specific facts which, if true, would entitle him to

relief.” United States v. Howard, 381 F.3d 873, 877 (9th Cir. 2004). Even if

Smith’s claim that he did not consent to a search of the entire car was meritorious,

the district court considering Smith’s suppression motion correctly concluded that

the police had probable cause to conduct a warrantless search of his truck, based on

the following: (1) the “Attempt to Locate” alert for a man meeting Smith’s

description and a royal blue Dodge Dakota pickup, which were suspected of

involvement in a string of burglaries; (2) an off-duty officer’s observation of Smith

“casing” residences in a royal blue Dodge Dakota pickup; and (3) the arresting

officer’s detection of a Sawzall and three screwdrivers, tools of the kind he knew

burglars use to enter buildings, during a limited search that Smith admits was

consensual. See United States v. Brooks, 610 F.3d 1186, 1193 (9th Cir. 2010);

United States v. Gonzales, 749 F.2d 1329, 1337 (9th Cir. 1984). Because the

district court correctly denied Smith’s suppression motion on this alternate ground,

any error by Smith’s counsel in raising Smith’s lack of consent claim would not

have affected the outcome of the suppression motion. Therefore, Smith’s


                                           2
ineffective assistance of counsel claim cannot prevail. Strickland v. Washington,

466 U.S. 668, 694 (1984).

      The district court also did not err in denying Smith’s claim that his trial

counsel rendered ineffective assistance by failing to investigate, obtain, and present

additional evidence that his prior burglary conviction did not qualify as a violent

felony under the Armed Career Criminal Act. See generally Taylor v. United

States, 495 U.S. 575, 601–02 (1990). The Supreme Court has not indicated that

evidence outside the narrow category of documents permitted by Taylor and

Shepard v. United States, 544 U.S. 13, 26 (2005), may be presented by the defense,

and therefore Smith’s proffered evidence was plainly inadmissible. See United

States v. Corona-Sanchez, 291 F.3d 1201, 1211 (9th Cir. 2002) (en banc),

superseded on other grounds by U.S.S.G. § 2L1.2, cmt. n.4 (2002); United States v.

Pallares-Galan, 359 F.3d 1088, 1099 (9th Cir. 2004). Nor did Smith have a due

process right to conduct the sort of “evidentiary enquir[y] into the factual basis for

the earlier conviction,” Shepard, 544 U.S. at 20, that the Court rejected in Taylor

and again in Shepard. Accordingly, counsel’s representation was not deficient

relative to extant professional norms. Strickland, 466 U.S. at 687–88.

      AFFIRMED.




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