                              NOT FOR PUBLICATION

                       UNITED STATES COURT OF APPEALS                         FILED
                              FOR THE NINTH CIRCUIT                            FEB 27 2013

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

RUBEN QUEVEDO,                                   No. 10-15939

              Petitioner-Appellant,              D.C. No. 1:06 CV 01621-LJO-
                                                 DLB
  v.

M.C. KRAMER,                                     MEMORANDUM*

              Respondent/Appellee.



                    On Appeal from the United States District Court
                         for the Eastern District of California
                     Lawrence J. O’Neill, District Judge, Presiding

                             Submitted February 15, 2013**
                               San Francisco, California

Before: SCHROEDER and MURGUIA, Circuit Judges, and MCNAMEE, Senior
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 Stephen M. McNamee, Senior District Judge for the
U.S. District Court for the District of Arizona, sitting by designation.
      California state prisoner Ruben Quevedo (“Quevedo”) appeals the denial of

his petition for writ of habeas corpus. Quevedo alleges that he received ineffective

assistance of counsel (“IAC”) at trial in violation of the Sixth Amendment.

Specifically, Quevedo alleges that trial counsel failed to file a Fourth Amendment

motion to suppress methamphetamine seized at the apartment in which he was

staying which resulted in his conviction. At sentencing, Quevedo received a three

strikes sentence of 25 years to life. We have jurisdiction pursuant to 28 U.S.C. §§

1291, 2253(a), (c) and affirm the district court’s order denying habeas relief.

      This Court “review[s] de novo the district court’s grant or denial of a 28

U.S.C. § 2254 petition for writ of habeas corpus.” Runningeagle v. Ryan, 686 F.3d

758, 766 (9th Cir. 2012). The district court’s findings of fact are reviewed for

clear error. Brown v. Ornoski, 503 F.3d 1006, 1010 (9th Cir. 2007). Our review of

Quevedo’s habeas corpus petition is subject to the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”). Under AEDPA, habeas relief may not be

granted unless the state court’s adjudication of a claim “resulted in a decision that

was contrary to or involved an unreasonable application of clearly established

Federal law, as determined by the Supreme Court of the United States,” or the state

court’s conclusions were “based on an unreasonable determination of the facts in

light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d);


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Harrington v. Richter, 131 S. Ct. 770, 787-88 (2011) (describing AEDPA

deference owed to a state court’s ruling on an IAC claim).

      Quevedo contends that trial counsel rendered IAC by failing to file a motion

to suppress the methamphetamine–a motion under the Fourth Amendment he

contends would have been successful–and that he was prejudiced by receiving a

sentence based upon California’s three strikes law. Quevedo properly raised and

exhausted this IAC claim in state court, where it was rejected.

      To prove IAC, Quevedo must show that (1) counsel’s assistance was so

defective as to fall below an objective standard of reasonableness and (2) the

deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S.

668, 687 (1984). We find that there was a reasonable basis for the state court’s

rejection of Quevedo’s IAC claim.

      Prior to Quevedo’s arrest, he was a suspect in a burglary investigation, and

authorities learned that he was staying at his brother Jaime’s apartment. Jaime had

previously been convicted of a drug violation and, in exchange for serving a

sentence of probation, had consented to warrantless probation searches of his

premises conducted without probable cause. At the time of Quevedo’s trial,

California law construed federal constitutional standards and sanctioned third-party

consent searches without probable cause or reasonable suspicion so long as (1)


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police officers were aware that the probationer whose premises were to be searched

had consented to probation searches, (2) there was a legitimate law enforcement

purpose for the search, and (3) the search was not arbitrary or conducted for

purposes of harassment. Under California law, a consent-based search was valid

when consent was given by an individual with common or superior authority over

the area to be searched; consent from other interested parties was unnecessary. See

People v. Woods, 981 P.2d 1019, 1024 (Cal. 1999). Here, officers were aware of

Jaime’s probation search conditions and therefore had a legitimate purpose for

conducting a probation search during their investigation of potential criminal

activity occurring at Jaime’s apartment.

      During Quevedo’s state court proceedings, trial counsel explained that he

did not file a motion to suppress because he understood that under then-existing

California law the officers knew that Jaime consented to a probation search, which

allowed them to search Jaime’s apartment without a warrant so long as there was a

legitimate law enforcement purpose. The district court found that trial counsel did

not render IAC because the officers had a legitimate investigative purpose when

they conducted a probation search of Jaime’s apartment: they were informed that

Quevedo, a suspect in an ongoing burglary investigation, was present at and likely

concealing stolen items in Jaime’s apartment. The methamphetamine, which


                                           4
Quevedo admitted was his, was therefore properly seized pursuant to a valid

probation search.

      Next, we reject Quevedo’s reliance upon direct review cases that required

officers to have a proper probationary purpose for a search. As the California

Supreme Court explained in Woods, probation searches were valid to monitor the

probationer or, as here, “to serve some other law enforcement purpose.” 981 P.2d

at 1027 (emphasis added). Furthermore, Quevedo’s reliance upon Griffin v.

Wisconsin, 483 U.S. 868 (1987), which addressed the constitutional validity of a

regulatory scheme authorizing warrantless searches of probationers, is misplaced.

      Finally, Quevedo argues that trial counsel should have known that the

subterfuge engaged in by the police–using Jaime’s probation search condition to

secure evidence against Quevedo–was “constitutionally repugnant.” In Whren v.

United States, 517 U.S. 806 (1996), the Court considered–and rejected–a similar

pretext argument as the one Quevedo asserts. The Whren Court found that the

officers’ subjective motivations did not invalidate the search since the

circumstances, viewed objectively, justified their action. Id. at 812-13. Such is the

case here. Accordingly, Quevedo’s arguments to the contrary are without merit.

AFFIRMED.




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