                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 08 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 08-30443

             Plaintiff - Appellee,               D.C. No. 3:07-cr-00207-KI

  v.
                                                 MEMORANDUM *
MICHAEL THOMAS COTTRELL,

             Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Oregon
                   Garr M. King, Senior District Judge, Presiding

                           Submitted February 4, 2010 **
                               Seattle, Washington

Before: RYMER, GOULD and BYBEE, Circuit Judges.

       Michael Cottrell pleaded guilty to one count of unarmed bank robbery in

violation of 18 U.S.C. § 2113(a) and now appeals the forty-six-month sentence




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
imposed by the district court. We have jurisdiction pursuant to 28 U.S.C. § 1291

and affirm the sentence.

      Cottrell elected to represent himself during the sentencing proceedings and

submitted three sets of objections to the presentence investigation report (PSR).

Many of these objections related to the allegedly-inaccurate narrative descriptions

of his prior criminal convictions. Cottrell requested copies of the police reports

that had been used to compile the PSR. His aim was to demonstrate the

inaccuracies that he perceived, but the district court denied that request. Cottrell

also objected to the limitations he faced, as an in-custody defendant, on access to

legal phone calls, photocopies, the law library, and other legal materials.

      Cottrell first argues that the performance of his advisory attorney violated

Cottrell’s Sixth Amendment right to the effective assistance of counsel by not

procuring the police reports for Cottrell. Ineffective assistance claims are generally

not reviewed on direct appeal because they usually lack “a sufficient evidentiary

record as to what counsel did, why it was done, and what, if any, prejudice

resulted.” United States v. Mohsen, 587 F.3d 1028, 1033 (9th Cir. 2009). Here,

there is no record of the efforts that Cottrell’s advisory counsel made in response to




                                           2
Cottrell’s requests, so the record is insufficient to permit review. We therefore

decline to consider the ineffective assistance claim on direct appeal. Id.1

      Cottrell’s second claim is that the district court violated his due process

rights by denying his motion to discover the police reports. Under Brady v.

Maryland, 373 U.S. 83 (1963), Cottrell had a right to the police reports if they

were material and favorable to him. Id. at 87. The police reports are material “if

there is a reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different.” Strickler v.

Greene, 527 U.S. 263, 280 (1999). Even if these reports might be considered in

any degree exculpatory or favorable to Cottrell, Cottrell has not shown that the

police reports were material to the sentence he received. The district court

considered Cottrell’s objections to the narrative descriptions of his prior

convictions, and said that “none of them would affect the advisory guideline

calculations or [Cottrell’s] sentence, and they are based on factual information.”

The district court accepted the existence of the convictions, but did not rely on the


      1
        Because we decline to consider the ineffective assistance claim for want of
an adequate record on direct appeal, we have no occasion to decide whether a Sixth
Amendment claim of ineffective assistance of counsel may be made with regard to
the work or oversight of an “advisory” or a “standby” counsel where there is no
claim that Cottrell’s decision to represent himself was involuntary. See Williams v.
Stewart, 441 F.3d 1030, 1047 n.6 (9th Cir. 2006) (per curiam) (citing Faretta v.
California, 422 U.S. 806, 834 n.46 (1975)).

                                           3
allegedly-inaccurate narrative descriptions in determining Cottrell’s sentence under

the Sentencing Guidelines or 18 U.S.C. § 3553. The narrative descriptions did not

increase Cottrell’s sentence, so the underlying police reports were not “material . . .

to punishment” under Brady. Brady, 373 U.S. at 87. Accordingly, we reject

Cottrell’s second claim.

      Cottrell’s final claim of error is that he was denied access to legal materials

and to the courts in violation of the First and Sixth Amendments. See Lewis v.

Casey, 518 U.S. 343, 384 (1996) (holding the fundamental right of access to the

courts means “the opportunity to prepare, serve and file whatever pleadings or

other documents are necessary . . . [in] court proceedings affecting one’s personal

liberty”) (quoting Hatfield v. Bailleaux, 290 F.2d 632, 637 (9th Cir. 1961), cert.

denied, 368 U.S. 862 (1961); United States v. Sarno, 73 F.3d 1470, 1491 (9th Cir.

1995) (discussing pro se defendant’s Sixth Amendment right of access to materials

to prepare a defense). There is no violation of these rights where the defendant is

given reasonable access to legal tools and has the opportunity to present all of his

nonfrivolous claims to the court. Lewis, 518 U.S. at 352–53; Sarno, 73 F.3d at

1491–92. Here, Cottrell complains that his rights were violated by delays in

receiving his case file following transfers between detention facilities, loss of

documents during transfer, limitations on legal calls, delays in receiving requested


                                           4
photocopies, and limitations on law library access. Despite these limitations,

Cottrell has not demonstrated that he was blocked from having reasonable access

to legal materials necessary to his PSR objections. The district court granted

Cottrell special permission to possess a copy of the PSR and assisted him in

consolidating his case file and obtaining information related to his criminal history.

Cottrell was appointed an investigator and two successive attorneys to act as

standby and then advisory counsel. The legal materials available to Cottrell

allowed him to “present [his] grievances,” see Lewis, 518 U.S. at 360, to the

district court, which overruled Cottrell’s PSR objections not because they were

undeveloped but because they were irrelevant to the determination of his sentence.

There was no violation of Cottrell’s right to access the courts.

      AFFIRMED.




                                           5
