                                                                              FILED
                                                                              AUG 13 2012
                           NOT FOR PUBLICATION                            MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

                    UNITED STATES COURT OF APPEALS

                           FOR THE NINTH CIRCUIT




NHAT D. MAI,                                      No. 09-15729

             Petitioner-Appellant,                D.C. No. 3:05-cv-05272-MMC

      v.                                          MEMORANDUM*

JOE MCGRATH, Warden,

             Respondent-Appellee.



                    Appeal from United States District Court
                     for the Northern District of California
               Maxine M. Chesney, Senior District Judge, Presiding

                            Submitted August 8, 2012**
                             San Francisco, California




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
            The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).
Before:      CALLAHAN and WATFORD, Circuit Judges, and SINGLETON,***
             Senior District Judge

      In 2003 Nhat D. Mai, on the advice of counsel, entered into a negotiated plea

to one count of murder, two counts of attempted murder, and one count of assault

with a deadly weapon in consideration of a stipulated sentence of forty years to life

imprisonment. Mai was convicted and received the agreed upon sentence.

Thereafter Mai sought to set aside his plea based upon allegations of ineffective

assistance of counsel in the state courts and in district court. The state courts and

the district court rejected Mai’s claims.

      Because the state courts did not provide a reasoned decision denying Mai’s

ineffective assistance of counsel claim, the district court conducted an independent

review of the record and concluded that the state court’s denial of Mai’s habeas

petition was not an unreasonable application of clearly established federal law. See

Himes v. Thompson, 336 F.3d 848, 852-53 (9th Cir. 2003); 28 U.S.C. § 2254(d).

Having reviewed the decision of the district court de novo and the district court’s

findings of fact for clear error, Brown v. Ornoski, 503 F.3d 1006, 1010 (9th Cir.

2007), we affirm.




      ***
             The Honorable James K. Singleton, Jr., Senior United States District
Judge for the District of Alaska, sitting by designation.
                                            2
      To succeed on a claim of ineffective assistance of counsel, Mai must

establish that his plea was involuntary by demonstrating that his counsel’s advice

that caused him to plead guilty fell below “the range of competence demanded of

attorneys in criminal cases.” Hill v. Lockhart, 474 U.S. 52, 56-57 (1985) (citation

omitted) (internal quotation marks omitted).

      Mai argues that his counsel should have filed a motion to suppress a

conversation he had with his father, in which he asked his father to provide an alibi

for him and to contact fellow gang members to seek their assistance in intimidating

witnesses. Unknown to Mai or his father, the police recorded this conversation,

which took place at the police station after Mai’s arrest but prior to being formally

charged.1 Although the conversation was in Vietnamese, a Vietnamese speaking

police officer translated the recorded conversation.

      Mai contends that this recorded conversation was the strongest evidence

against him and claims that he demanded his attorney file a motion to suppress his

conversation with his father. Three attorneys who represented Mai at various times

all told him such a motion would fail. It is this advice that Mai contends was

deficient and led to his plea. Mai believes that had a motion to suppress been filed,


      1
             In order to establish the date Mai was formally charged, Appellee
filed a motion requesting that we take judicial notice of the first page of the Felony
Complaint charging Mai. The motion is unopposed and we therefore grant the
motion.
                                          3
it would have been granted, and if granted he would have elected to go to trial. But

federal law governs the inquiry here, and nothing in federal law indicates that a

suppression motion would have succeeded had Mai’s attorney filed one.

      The people of California, utilizing the initiative process, have amended the

state constitution to deny California judges jurisdiction to suppress evidence based

upon provisions of state law. Cal. Const., art. I, § 28(f)(2) (Truth-in-Evidence).

Under current California law, motions to suppress must be based upon federal law.

See, e.g., People v. Lessie, 223 P.3d 3, 7 n.2 (Cal. 2010) (noting that California

Constitution’s Truth-in-Evidence provision “generally precludes California courts

from creating new exclusionary rules based on the state Constitution”). Thus, the

California courts considering Mai’s attempt to set aside his plea would have had to

consider the viability of a putative suppression motion under federal law.

      The United States Supreme Court has never extended Katz v. United States,

389 U.S. 347 (1967), to create a right to privacy for inmates in jails conversing

with anyone other than their lawyer. The only Supreme Court case directly on

point is Lanza v. New York, 370 U.S. 139, 142-43 (1962) (no right to privacy

within police station). While Lanza preceded Katz, later cases continue to cite

Lanza for the principle that there is no right to privacy in conversations between

people in a jail unless one of them is a retained or appointed lawyer. See, e.g., U.S.



                                          4
v. Hearst, 563 F.2d 1331, 1345 (9th Cir. 1977) (“Post-Katz decisions of this circuit

dealing with jailhouse searches and seizures, however, have treated Katz and Lanza

as compatible.”); People v. Loyd, 45 P.3d 296, 299-301 (Cal. 2002); Donaldson v.

Superior Court, 672 P.2d 110, 112 (Cal. 1983) (noting that a police interview room

is not a protected area for Fourth Amendment purposes).

      Given this state of the law, the California courts did not unreasonably apply

Strickland in concluding that any advice by Mai’s attorney on the recorded

statement’s admissibility was competent. Thus, any such advice could not have

rendered Mai’s plea involuntary under Tollett v. Henderson, 411 U.S. 258, 266

(1973).

      Mai argues that the police intentionally used his father as an agent to

“interrogate him.” See Rhode Island v. Innis, 446 U.S. 291 (1980). There is no

evidence that the police used Mai’s father as an agent. Mai also makes a Sixth

Amendment claim based upon People v. Burton, 491 P.2d 793 (Cal. 1971),

overruled by Lessie, 223 P.3d at 13. He misreads Burton as holding that

conversations with a parent should be treated as conversations with an attorney. In

any event, Burton “is no longer good law.” Lessie, 223 P.3d at 4. A party may not

predicate a claim of ineffective assistance of counsel on a decision valid at the time




                                          5
that was subsequently overruled. See Lockhart v. Fretwell, 506 U.S. 364, 372-73

(1993).

      Finally, Mai contends that counsel’s failure to obtain an interpreter to

translate English into Vietnamese constituted ineffective assistance leading to an

involuntary plea. There is no evidence to suggest that language difficulties

prevented Mai from understanding the nature of the charges and the terms of his

plea agreement. Mai came to the United States when he was seven and attended

public school, eventually graduating from High School in California. His answers

to questions put to him by court and counsel seem responsive. Mai has presented

no evidence that his understanding of English was insufficient to enable him to

enter a knowing, intelligent and voluntary plea. Thus, the California courts did not

unreasonably apply Strickland in concluding that Mai failed to establish ineffective

assistance of counsel on this ground.

      Accordingly, the judgment of the district court is AFFIRMED. Appellee’s

motion to take judicial notice is granted.




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