                                                                              FILED
                           NOT FOR PUBLICATION                                 JAN 31 2011

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 09-15890

              Plaintiff - Appellee,              D.C. Nos.    4:07-cv-05583-CW
                                                              4:04-cr-40071-CW-1
  v.

LAL BHATIA,                                      MEMORANDUM*

              Defendant - Appellant.


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

                           Submitted January 12, 2011**
                             San Francisco, California

Before: HUG, SCHROEDER, and RAWLINSON, Circuit Judges.

       Appellant Lal Bhatia (Bhatia) was convicted of mail fraud and money

laundering. Bhatia challenges the district court’s denial of his 28 U.S.C. § 2255

motion. Bhatia contends that his trial counsel provided ineffective assistance of


        *
             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).
counsel and that his money laundering convictions should be reversed pursuant to

United States v. Santos, 553 U.S. 507 (2008).



1.    Bhatia’s counsel was not ineffective for failing to file a motion to suppress

evidence seized from Bhatia’s residence, as any omissions in the search warrant

affidavit regarding a civil lawsuit against Bhatia “would not have materially

affected the probable cause determination.” United States v. Casteneda, 511 F.3d

1246, 1251 (9th Cir. 2008).



2.    The district court correctly denied Bhatia’s claim that his counsel failed to

investigate and prepare a valid defense to the mail fraud charges. Bhatia’s counsel

provided an adequate defense that Bhatia lacked the requisite intent to defraud and

his counsel’s representation did not “fall[ ] below an objective standard of

reasonableness.” Earp v. Cullen, 623 F.3d 1065, 1074 (9th Cir. 2010) (citation and

internal quotation marks omitted).



3.    The district court properly denied Bhatia’s claim that his counsel was

ineffective due to a lack of experience. See Ortiz v. Stewart, 149 F.3d 923, 933

(9th Cir. 1998) (“In considering a claim of ineffective assistance of counsel, it is


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not the experience of the attorney that is evaluated, but rather, his performance.”)

(citation and parentheses omitted).



4.    Assuming, without deciding, that it was improper for Bhatia’s attorney to

threaten to withdraw if Bhatia testified, Bhatia did not demonstrate that “there

[was] a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different” given the substantial evidence

of Bhatia’s guilt. Earp, 623 F.3d at 1074 (citations omitted).



5.    The failure of Bhatia’s counsel to call additional witnesses, including a

witness mentioned by counsel during his opening statement, did not constitute

deficient performance, as any additional testimony would have been cumulative.

See Clabourne v. Lewis, 64 F.3d 1373, 1382 (9th Cir. 1995) (“[F]ailure to present

cumulative testimony does not amount to ineffective assistance.”) (citation and

parentheses omitted). In any event, there was not “a reasonable probability that,

but for counsel’s alleged errors, the results in [Bhatia’s] case would have been

different.” Young v. Runnels, 435 F.3d 1038, 1043 (9th Cir. 2006) (citations

omitted).




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6.    The Supreme Court’s decision in Santos does not compel reversal of

Bhatia’s money laundering convictions, as his convictions were based on payments

independent of the misrepresentations upon which his mail fraud convictions were

premised. See United States v. Bush, 626 F.3d 527, 537 (9th Cir. 2010).



7.    Bhatia’s claim based on prosecutorial and judicial misconduct does not

warrant expansion of the certificate of appealability as Bhatia has not “made a

substantial showing of the denial of a constitutional right.” United States v. Cruz,

423 F.3d 1119, 1120 (9th Cir. 2005) (citations and internal quotation marks

omitted).

      AFFIRMED.




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