                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


GREGORY MAHRT,                            No. 15-16404
          Petitioner-Appellee,
                                          D.C. No.
               v.                    1:14-cv-01696-NJV

JEFFREY A. BEARD, Secretary of
the California Department of               OPINION
Corrections and Rehabilitation;
STU SHERMAN, Warden,
         Respondents-Appellants.


     Appeal from the United States District Court
        for the Northern District of California
     Nandor J. Vadas, Magistrate Judge, Presiding

      Argued and Submitted September 14, 2016
              San Francisco, California

                    Filed March 1, 2017

   Before: William A. Fletcher, Morgan B. Christen,
      and Michelle T. Friedland, Circuit Judges.

             Opinion by Judge W. Fletcher
2                         MAHRT V. BEARD

                            SUMMARY*


                          Habeas Corpus

    The panel reversed the district court’s grant of a habeas
corpus petition in which a California state prisoner alleged
that his Sixth Amendment right to effective assistance of
counsel was violated by trial counsel’s failure to bring a pre-
plea suppression motion.

    The panel held that the petitioner’s ineffective assistance
of counsel claim is not barred by Tollett v. Henderson, 411
U.S. 258 (1973), which, properly understood, does not bar
federal habeas claims of pre-plea ineffective assistance of
counsel when the action, or inaction, of counsel prevents
petitioner from making an informed choice whether to plead.
The panel explained that if the deputies unconstitutionally
searched the petitioner’s home, counsel’s failure to move to
suppress the fruits of that search prevented him from making
an informed choice whether to plead.

    The panel wrote that counsel should have moved to
suppress the firearm and ammunition found in the petitioner’s
home, but concluded that the state habeas courts were not
unreasonable in denying the writ because it would have been
reasonable for the state courts to conclude that a motion to
suppress, if brought, would likely have been denied.




    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                      MAHRT V. BEARD                           3

                         COUNSEL

Pamela K. Critchfield (argued), Deputy Attorney General;
Peggy S. Ruffra and Jeffrey M. Laurence, Supervising
Deputy Attorneys General; Office of the Attorney General,
San Francisco, California, for Respondents-Appellants.

Paul Kleven (argued), Law Offices of Paul Kleven, Berkeley,
California, for Petitioner-Appellee.


                          OPINION

W. FLETCHER, Circuit Judge:

    The State of California appeals from a grant of habeas
corpus to Petitioner Gregory Mahrt. The district court found
that Mahrt’s state-court guilty plea rested on a violation of his
Sixth Amendment right to effective assistance of counsel.
For the reasons that follow, we reverse.

                    I. Factual Background

    On September 3, 2012, at approximately 10:00 p.m.,
Sonoma County Sheriff’s deputies were dispatched to a
residence in Petaluma, California. A neighbor had reported
that a “male and female subject [were] arguing over a gun.”
The property was owned by Robyn Ryan, the mother of
Petitioner-Appellee Gregory Mahrt’s ex-girlfriend, Tracy
Ryan. Mahrt was living in a garage on the property that had
been converted into a room.

    As the deputies approached the property, Mahrt walked
out and met them at the front gate. The deputies detained
4                     MAHRT V. BEARD

Mahrt and asked about the argument and the gun. In a
written “Incident/Investigation Report,” Deputy Yoder
described Mahrt as initially “uncooperative.” According to
Deputy Yoder’s report, Mahrt told the deputies that Tracy had
left before they arrived. Robyn Ryan stated in a sworn
declaration that she likewise had informed the deputies that
Tracy had “left the area” before they arrived, and that she had
provided this information to the deputies before any search.

    The deputies conducted what Deputy Yoder’s report
characterizes as a “protective sweep” of Mahrt’s room in the
garage. According to the report, the deputies felt justified in
conducting this warrantless search “[d]ue to the report of the
possible domestic incident and the mention of a deadly
weapon” and because Mahrt “may [have been] attempting to
conceal a victim inside.” As the deputies approached the
garage, Mahrt “began yelling that he did not want [the
officers] to enter his room.” The deputies found no one
inside Mahrt’s room.

    According to the report, the deputies observed
ammunition cans, ammunition, and what appeared to be an
AR-15 Rifle (later determined to be a replica). Upon
determining that no one was in the room, and after observing
the firearm-related materials, the deputies discontinued their
search of the garage.

    According to the report, the deputies subsequently learned
that Mahrt had a prior felony conviction and arrested him for
being a felon in possession of ammunition. The deputies then
asked Mahrt for permission to search his room, and Mahrt
consented. The deputies conducted a second search of the
room. They found additional ammunition, rifle magazines,
and two firearms.
                      MAHRT V. BEARD                         5

    In a sworn declaration, Mahrt described only one search
of his room. He insisted that he did not consent to the search.
He stated in his declaration:

       I saw several deputies approach the room, and
       stated that they did not have permission to
       search it, but they ignored me. The deputies
       searched the room for close to an hour. Inside
       the room were closed green boxes that
       contained ammunition, and a locked guitar
       case that contained a shotgun and an AK-47
       rifle. . . . After the deputies completed their
       search of the room, the deputy in charge,
       Deputy Yoder, approached and asked me to
       sign a written form waiving my right to object
       to the search. When I refused, the deputy I
       had been talking to about my [frightened
       three-year-old] son threatened that if I did not
       sign the waiver form, the SWAT team would
       tear the entire place up for the next twelve
       hours right in front of my son. I believe that
       his threat was recorded on the dash camera.
       Based on the threat, I signed the form and
       recorded a statement to the effect that the
       waiver was given voluntarily.

According to Deputy Yoder’s report, further investigation
“verified that [Tracy Ryan] was not a victim of Domestic
Violence.”

               II. Prior Judicial Proceedings

  On September 5, 2012, the State of California charged
Mahrt with having been a felon in possession of a firearm and
6                     MAHRT V. BEARD

ammunition in violation of California Penal Code
§ 29800(a)(1) and § 30305(a)(1). Mahrt believed that the
warrantless search (or searches) of the garage was (or were)
illegal. However, neither of the two public defenders who
represented him at the trial court level moved to suppress the
firearms and ammunition recovered from his room.

    Mahrt’s first public defender, Anderson Thomas,
represented Mahrt for just over a month while his case was
being considered for early resolution. Mahrt’s state-court
habeas corpus attorney, Paul Kleven, states in a sworn
declaration that Thomas originally told him that he did not
recall discussing a motion to suppress with Mahrt. However,
after checking his files, Thomas corrected himself, telling
Kleven that he “did recall Mr. Mahrt telling him that the
police should not have been allowed to search.” Kleven
states that Thomas recounted to him that he told Mahrt “the
search was justified under the circumstances.” Mahrt states
in his declaration that no such conversation occurred.

     Mahrt’s second public defender, Christina Davis, took
over from Thomas and represented Mahrt thereafter in the
trial court. Kleven states in a sworn declaration that he twice
spoke to Davis, who told him both times “that she did not
recall ever discussing a motion to suppress with Mr. Mahrt.”
Kleven drafted a proposed declaration to that effect, but
Davis never signed it. On November 2, 2012, Mahrt filed a
Marsden motion seeking to replace Davis as his court-
appointed counsel. See People v. Marsden, 465 P.2d 44 (Cal.
1970). A “Marsden motion” is the California procedural
mechanism through which a criminal defendant “seeks to
discharge his appointed counsel and substitute another
attorney” on the ground that he has received inadequate
representation. People v. Barnett, 954 P.2d 384, 409 (Cal.
                     MAHRT V. BEARD                         7

1998) (quoting People v. Memro, 905 P.2d 1305, 1343 (Cal.
1995)); see also John-Charles v. California, 646 F.3d 1243,
1245 n.1 (9th Cir. 2011). During his Marsden hearing, Mahrt
said he was dissatisfied with Davis because she had not
returned his phone calls, had made him feel “less important,”
and had left Mahrt “not feeling like [he was] being
represented.” Mahrt did not raise the issue of Davis’s failure
to file a suppression motion. The judge denied the request for
new counsel.

    A few weeks later, while still represented by Davis, Mahrt
pleaded guilty to both charges pursuant to an open plea
agreement. Mahrt’s signed waiver form has a circle around
“no contest” rather than “guilty,” but Mahrt unambiguously
pleaded “guilty” during his change of plea hearing, and the
state trial court record says that he pleaded guilty. Under an
“open plea” in California, the defendant pleads guilty without
any promises from the government. People v. Cuevas,
187 P.3d 30, 34–35 (Cal. 2008). Mahrt faced a maximum
prison sentence of seven years and four months. He received
a six-year sentence.

    On appeal, Mahrt’s appointed counsel did not raise any
issues. Instead, his counsel filed a “Wende” brief, the
California analogue to an Anders brief. A Wende brief is
filed when a California appellate attorney concludes that an
appeal would be frivolous. See Smith v. Robbins, 528 U.S.
259, 265 (2000); People v. Wende, 600 P.2d 1071, 1074–75
(Cal. 1979). On November 27, 2013, the California Court of
Appeal affirmed Mahrt’s conviction.

    With the assistance of counsel, Mahrt filed a state habeas
petition in the Court of Appeal. The petition alleged that the
warrantless search of Mahrt’s room violated the Fourth
8                     MAHRT V. BEARD

Amendment and that defense counsel provided ineffective
assistance of counsel by failing to move to suppress the
firearms and ammunition recovered during the search. The
Court of Appeal summarily denied Mahrt’s habeas petition.
The California Supreme Court also summarily denied his
petition.

   On April 11, 2014, Mahrt filed a federal habeas petition
pursuant to 28 U.S.C. § 2254(d). The petition alleged that
Mahrt’s Sixth Amendment right to effective assistance of
counsel was violated by his trial counsels’ failure to move to
suppress the firearms and ammunition found in his room. A
magistrate judge, sitting by consent, granted Mahrt’s petition.
See 28 U.S.C. § 636(c). The State timely appealed.

                   III. Standard of Review

   We review de novo the district court’s grant of habeas
corpus. Lambert v. Blodgett, 393 F.3d 943, 964 (9th Cir.
2004). We review factual findings for clear error. Id.

    Under the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996), we
may not grant Mahrt’s application for a writ of habeas corpus
with respect to any claim adjudicated on the merits in state
court unless the state adjudication “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,” 28 U.S.C. § 2254(d)(1),
or “resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding,” id. § 2254(d)(2).
                      MAHRT V. BEARD                          9

    “A state court decision is ‘contrary to’ clearly established
Supreme Court precedent if the state court applies a rule that
contradicts the governing law set forth in Supreme Court
cases or if the state court confronts a set of facts materially
indistinguishable from those at issue in a decision of the
Supreme Court and, nevertheless, arrives at a result different
from its precedent.” Moses v. Payne, 555 F.3d 742, 751 (9th
Cir. 2008) (citation omitted).

    A state-court adjudication “involves an unreasonable
application of th[e] [Supreme] Court’s precedent if the state
court identifies the correct governing legal rule from th[e]
Court’s cases but unreasonably applies it to the facts of the
particular state prisoner’s case.” Williams v. Taylor, 529 U.S.
362, 407 (2000). In order to satisfy the “unreasonable
application” prong of § 2254(d)(1), the state court decision
“must be objectively unreasonable, not merely wrong.”
Woods v. Donald, 135 S. Ct. 1372, 1376 (2015) (per curiam)
(quoting White v. Woodall, 134 S. Ct. 1697, 1702 (2014)).

    Where, as here, there is no reasoned state court decision
analyzing the state prisoner’s constitutional claim, we
“determine what arguments or theories . . . could have
supported[] the state court’s decision” and then determine
whether application of those hypothetical theories would have
been reasonable. Harrington v. Richter, 562 U.S. 86, 102
(2011); Murray v. Schriro, 745 F.3d 984, 996 (9th Cir. 2014).
Habeas relief is warranted only if “there was no reasonable
basis for the state court to deny relief.” Richter, 562 U.S. at
98.
10                    MAHRT V. BEARD

                       IV. Discussion

    The State makes two arguments. First, it argues that
under Tollett v. Henderson, 411 U.S. 258 (1973), Mahrt’s
ineffective assistance of counsel claim is not cognizable on
federal habeas review because it rests upon an alleged
constitutional violation that preceded his guilty plea. Second,
the State argues that even if Mahrt’s claim is cognizable, the
state court’s rejection of the claim was not contrary to or an
unreasonable application of established law as determined by
the Supreme Court. We hold that Tollett does not bar Mahrt’s
ineffective assistance of counsel claim. We hold further that
the state court could reasonably have concluded that Mahrt’s
counsel did not provide ineffective assistance in failing to
move to suppress the firearms and ammunition.

      A. Tollett and Ineffective Assistance of Counsel

    In Tollett v. Henderson, 411 U.S. 258 (1973), a state
prisoner sought federal habeas relief on the ground that the
indictment to which he had pleaded guilty had been returned
by a constitutionally defective grand jury. Reasoning that “a
guilty plea represents a break in the chain of events which has
preceded it in the criminal process,” the Supreme Court
denied relief. Id. at 267. It held that “[w]hen a criminal
defendant has solemnly admitted in open court that he is in
fact guilty of the offense with which he is charged, he may
not thereafter raise independent claims relating to the
deprivation of constitutional rights that occurred prior to the
entry of the guilty plea.” Id. However, the Court in Tollett
made clear that there is an exception to the general rule
barring federal habeas relief arising out of pre-plea
constitutional violations. The Court wrote that a habeas
petitioner may “attack the voluntary and intelligent character
                      MAHRT V. BEARD                          11

of the guilty plea” based on pre-plea ineffective assistance of
counsel “by showing that the advice he received from counsel
was not within the” “range of competence demanded of
attorneys in criminal cases.” Id. at 267–68 (internal
quotations omitted).

     The State argues that Tollett’s “voluntary and intelligent
. . . plea” exception applies only to ineffective assistance
rendered when providing incompetent advice concerning the
guilty plea itself, and not to ineffective assistance rendered in
other pre-plea contexts. On this interpretation of Tollett, a
claim that counsel provided incorrect advice about minimum
and maximum sentences or parole eligibility would not be
barred, but a claim, like the one brought by Mahrt, that
defendant received deficient representation in connection
with a pre-plea suppression motion, would be barred.

    The Tollett exception is not as narrow as the State
contends. Tollett, properly understood, provides that
although freestanding constitutional claims are unavailable to
habeas petitioners who plead guilty, claims of pre-plea
ineffective assistance of counsel are cognizable on federal
habeas review when the action, or inaction, of counsel
prevents petitioner from making an informed choice whether
to plead. See Tollett, 411 U.S. at 267–69; see also United
States v. Broce, 488 U.S. 563, 574 (1989) (suggesting that a
“failure by counsel to provide advice [on a double jeopardy
defense] may form the basis of a claim of ineffective
assistance of counsel” and could “serve as the predicate for
setting aside a valid plea.”); McMann v. Richardson, 397 U.S.
759, 772 (1970) (stating that “a plea of guilty in a state court
is not subject to collateral attack in a federal court on the
ground that it was motivated by a coerced confession unless
the defendant was incompetently advised by his attorney”).
12                    MAHRT V. BEARD

The scope of the Tollett exception may be seen in Tollett
itself. The Supreme Court held in Tollett that a defendant
who had pleaded guilty could not obtain habeas relief “by
proving only that” blacks were unconstitutionally excluded
from his grand jury. Tollett, 411 U.S. at 260. But rather than
dismiss the claim, the Supreme Court remanded to allow the
lower court to determine in the first instance whether
counsel’s failure to investigate or object to the grand jury
composition constituted ineffective assistance of counsel. Id.
at 268–70.

     Consistent with this interpretation of the Tollett
exception, many courts, including the Supreme Court, have
analyzed on the merits a habeas petitioner’s allegation that his
counsel rendered pre-plea ineffective assistance by failing to
file a motion to suppress. See Premo v. Moore, 562 U.S. 115,
123–32 (2011); Arvelo v. Sec’y, Fla. Dep’t of Corr., 788 F.3d
1345, 1348–50 (11th Cir. 2015); Lynch v. Sec’y, Fla. Dep’t of
Corr., 776 F.3d 1209, 1219–20 (11th Cir. 2015); Gilbert v.
Merchant, 488 F.3d 780, 790–95 (7th Cir. 2007); Weaver v.
Palmateer, 455 F.3d 958, 972 (9th Cir. 2006); Ward v.
Dretke, 420 F.3d 479, 487–90 (5th Cir. 2005); Langford v.
Day, 110 F.3d 1380, 1387 (9th Cir. 1996); Hale v. Lockhart,
903 F.2d 545, 550 (8th Cir. 1990); Adcox v. O’Brien,
899 F.2d 735, 737 (8th Cir. 1990).

    Mahrt’s ineffective assistance of counsel claim, premised
upon a failure to file a motion to suppress, is squarely within
this line of cases. The State’s entire case against Mahrt
depended on its ability to introduce into evidence the firearms
and ammunition found in his room. If the deputies
unconstitutionally searched Mahrt’s home, counsel’s failure
to move to suppress the fruits of that search prevented Mahrt
from making the informed choice to which he was entitled.
                     MAHRT V. BEARD                        13

We therefore conclude that Mahrt’s ineffective assistance of
counsel claim is allowed under Tollett.

              B. “Unreasonable Application”

     An ineffective assistance of counsel claim entails a two-
prong inquiry. “First, the defendant must show that counsel’s
performance was deficient.” Strickland v. Washington,
466 U.S. 668, 687 (1984). “Second, the defendant must show
that the deficient performance prejudiced the defense.” Id.
If the defendant has pleaded guilty, “in order to satisfy the
‘prejudice’ requirement, the defendant must show that there
is a reasonable probability that, but for counsel’s errors, he
would not have pleaded guilty and would have insisted on
going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).

    We conclude that trial counsel should have moved to
suppress the firearms and ammunition. There was at least a
chance that such a motion would have succeeded. First, there
was a clear conflict in the available evidence. Deputy
Yoder’s written report tells one story. Mahrt’s sworn
declaration, supplemented by the sworn declaration of Robyn
Ryan, tells another. Both of those declarations were
presented to the California courts by Mahrt’s habeas counsel.
The same evidence — in the form of declarations or live
testimony — would undoubtedly have been available to
Mahrt’s trial counsel had he or she sought to obtain it.
According to Mahrt and Robyn Ryan, the deputies were told
before they searched Mahrt’s room that Tracy Ryan had left
the area. The deputies then searched Mahrt’s room over his
objection. According to Mahrt, there was one extensive
search of his room, to which he unambiguously objected,
rather than, as recounted by Deputy Yoder, a preliminary
14                   MAHRT V. BEARD

sweep, followed by consent by Mahrt to a further search,
followed by an extensive search.

    Second, Deputy Yoder’s report mischaracterized the first
search (if indeed it was a first search rather than a single
search) as a “protective sweep.” A warrantless protective
search is permitted under Maryland v. Buie, based on the
“interest of the officers in taking steps to assure themselves
that the house in which a suspect is being, or has just been,
arrested is not harboring other persons who are dangerous and
who could unexpectedly launch an attack.” 494 U.S. 325,
333 (1990). Mahrt was being detained by the deputies, and
they had no reason to suspect that there was some other
person who could pose a danger to themselves or to others.

    We nonetheless conclude that the state habeas courts were
not unreasonable in denying the writ. We have nothing but
one-sentence denials from the Court of Appeal and from the
Supreme Court, so we are obliged to supply the reasons those
courts could have had for their denials. Richter, 562 U.S. at
102. It would have been reasonable for the state courts to
conclude that a motion to suppress, if brought, would likely
have been denied. This is so even if Mahrt’s evidence is
believed, and even in light of Deputy Yoder’s statement that
the search was a “protective sweep.” We do not regard
Yoder’s improper use of this legal term, which has a specific
and relatively narrow meaning, as preventing the state courts
from relying on some other basis to justify the search.
Specifically, the state courts could reasonably have concluded
that the search was justified under the “emergency aid”
exception to the warrant requirement. See Michigan v.
Fisher, 558 U.S. 45, 47 (2009) (per curiam).
                      MAHRT V. BEARD                        15

    Deputy Yoder stated in his report that “[b]ased on
[Mahrt’s] behavior, I felt he may be attempting to conceal a
victim inside.” Although warrantless searches of the home
are “presumptively unreasonable,” Kyllo v. United States,
533 U.S. 27, 40 (2001), law enforcement officers “may enter
a home without a warrant to render emergency assistance to
an injured occupant or to protect an occupant from imminent
injury.” Michigan v. Fisher, 558 U.S. 45, 47 (2009) (internal
quotation marks omitted). To invoke this “emergency aid”
exception, an officer must have an objectively reasonable
basis for believing both that a person is inside the house and
that the person is in need of immediate aid. See id.; United
States v. Martinez, 406 F.3d 1160, 1164 (9th Cir. 2005).

     Yoder and the other deputies were not obliged to believe
Mahrt and Robyn Ryan when they said that Tracy Ryan had
left the area. The officers “were not conducting a trial, but
were required to make an on-the-spot decision as to whether
[the potential victim] could be in the apartment in need of
medical help.” United States v. Black, 482 F.3d 1035, 1040
(9th Cir. 2007). “[H]ad they not investigated and [the victim]
was in fact in the apartment[,]” the officers would likely have
been “harshly criticized” by their superiors. Id.; see also
Martinez, 406 F.3d at 1164 (emphasizing “[t]he volatility of
situations involving domestic violence”). It thus would not
have been unreasonable for the state courts to regard the
possibility of a victim inside Mahrt’s room as an exigent
circumstance justifying the warrantless search of the room.
See, e.g., Mincey v. Arizona, 437 U.S. 385, 392 (1978).
16                   MAHRT V. BEARD

                        Conclusion

   We therefore reverse the district court’s grant of habeas
corpus.

     REVERSED.
