                                                                              FILED
                           NOT FOR PUBLICATION                                 JUN 20 2012

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-35598

              Plaintiff - Appellee,              D.C. Nos. 2:10-cv-03113-WFN
                                                           2:05-cr-02118-WFN-1
  v.

SANTOS PETER MURILLO, AKA Peter                  MEMORANDUM*
Santos Murillo,

              Defendant - Appellant.


                  Appeal from the United States District Court
                     for the Eastern District of Washington
              Wm. Fremming Nielsen, Senior District Judge, Presiding

                             Submitted June 6, 2012**
                               Seattle, Washington

Before: SILVERMAN and MURGUIA, Circuit Judges, and HALL, 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 Janet C. Hall, District Judge for the U.S. District Court
for Connecticut, sitting by designation.
      Petitioner Santos Peter Murillo (“Murillo”) seeks habeas relief pursuant to

28 U.S.C. § 2255, claiming that his trial counsel rendered ineffective assistance in

failing to argue that two prior offenses in his presentence report – a gun charge and

a harassment charge, which occurred on the same day – should have been

considered related and treated as a single case for computation of his criminal

history. He claims that if the offenses had been treated as related, he would have

had a criminal history category of III instead of IV and, therefore, would likely

have received a lower sentence.

      This Court reviews a district court’s denial of habeas relief pursuant to 28

U.S.C. §2255 de novo. Lopez v. Schriro, 491 F.3d 1029, 1036 (9th Cir. 2007). To

establish ineffective assistance of counsel, a petitioner has to show that counsel’s

representation fell below an objective standard of reasonableness; he must establish

both that his counsel’s performance was deficient and that the deficient

performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687-

88 (1984). The second prong of Strickland is met when there is a reasonable

probability that, but for counsel's unprofessional errors, the result of the proceeding

would have been different. See United States v. Fredman, 390 F.3d 1153, 1156

(9th Cir. 2004).




                                          2
      At the time Murillo was sentenced, the United States Sentencing Guidelines

provided that “[p]rior sentences are not considered related if they were for offenses

that were separated by an intervening arrest.” U.S.S.G. §4A1.2 Application Note 3

(Nov. 1, 2006 ed.). “If an intervening arrest did separate the offenses, our inquiry

is over: the offenses are unrelated for the purposes of the Guidelines.” United

States v. Asberry, 394 F.3d 712, 719 (9th Cir. 2005). An arrest is intervening if it

occurs between and separates the conduct underlying two convictions. Id. at 718.

Here, the gun offense was discovered in a search incident to an arrest on a prior

warrant. It is reasonable to infer that the arrest encompassed the gun possession

offense, because he was transported to the police station and booked into jail

following the discovery of the gun offense. See United States v. Leal-Felix, 665

F.3d 1037, 1041 (9th Cir. 2011) (holding that a formal arrest may be indicated by

informing the suspect that he is under arrest, transporting the suspect to the police

station, and/or booking the suspect into jail). The arrest interrupted the conduct

underlying Murillo’s prior gun possession charge and the harassment, which

occurred later the same day. Because there appears to have been an intervening

arrest, the two offenses were separate, so that the performance of Murillo’s counsel

did not fall below an objective standard of reasonableness in failing to object to the

correctly calculated criminal history category.


                                          3
      Although an argument can be made that the arrest here was not intervening

because it preceded the discovery of the gun offense, this is at best an unclear area

of the law. Given the lack of clarity in the law concerning whether the arrest in

this case could be considered intervening, Murillo cannot establish that his counsel

was objectively unreasonable in failing to object to the presentence report. Se,

Lockhart v. Fretwell, 506 U.S. 364, 371 (1993) (holding that whether performance

of counsel was deficient is based upon the law as it existed at the time); Davie v.

Mitchell, 547 F.3d 297, 315 (6th Cir. 2008); Lucas v. Johnson, 132 F.3d 1069,

1078 (5th Cir. 1998). Nor can he establish a reasonable probability that if his

counsel had objected, the court would have treated the two offenses as related.

      AFFIRMED.




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