931 F.2d 898
Unpublished Disposition
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,
v.
Michael L. MARINE, Defendant-Appellant.
No. 89-16572.
United States Court of Appeals, Ninth Circuit.
Submitted April 29, 1991.*
Decided May 1, 1991.
Before CANBY, KOZINSKI and FERNANDEZ, Circuit Judges.
MEMORANDUM**
Michael L. Marine, a federal prisoner, appeals pro se the district court's denial of his 28 U.S.C. Sec. 2255 motion to vacate his sentence. We review the district court's denial of a section 2255 motion de novo, United States v. Poopola, 881 F.2d 811, 812 (9th Cir.1989), and we affirm.
In his section 2255 motion, Marine contended that the police had no reasonable suspicion to justify an investigatory stop of his vehicle. Marine also alleged that the police unlawfully obtained a warrant to search the car because they established probable cause by obtaining signed consent from his passenger to search her purse, entering the car to get her purse, and observing items in the car which provided probable cause for a search.
During Marine's trial, his attorney challenged the investigatory stop and moved to suppress the evidence seized from the car based on the allegedly unlawful warrant. The district court held an evidentiary hearing on the motion to suppress, but denied it. On direct appeal, his attorney challenged the investigatory stop but did not challenge the validity of the search warrant. This court affirmed Marine's conviction on direct appeal, stating that it had examined "the record from the initial stop through sentencing" and holding in part that the police had reasonable suspicion to justify the investigatory stop. United States v. Marine, No. 87-1283, unpublished opinion at 2 (9th Cir. January 9, 1989).
Marine had a full and fair opportunity to present his fourth amendment claims at trial and on direct appeal. Consequently, he may not raise the claims on collateral review. Stone v. Powell, 428 U.S. 465, 481 & n. 16, 494 (1976); United States v. Hearst, 638 F.2d 1190, 1196 (9th Cir.1980), cert. denied, 451 U.S. 938 (1981); Tisnado v. United States, 547 F.2d 452, 455-56 (9th Cir.1976). His attorney's failure to raise one of the claims on direct appeal is irrelevant: the pertinent inquiry is whether he had the opportunity to do so. Hearst, 638 F.2d at 1196; see Gordon v. Duran, 895 F.2d 610, 613 (9th Cir.1989).
On appeal, Marine may be arguing that his attorney's failure to raise the unlawful search warrant claim on direct appeal constituted ineffective assistance of counsel.1 Because Marine did not present this claim in his section 2255 motion, we decline to address it on appeal. See Powell v. Spaulding, 679 F.2d 163, 164 (9th Cir.1982).
AFFIRMED.
The panel unanimously finds this case suitable for disposition without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
To establish ineffective assistance of counsel, a defendant must show that the counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Id. There is a strong presumption that counsel's conduct falls within "the wide range of reasonable professional assistance." Id. at 689. To show prejudice from a counsel's failure to litigate a fourth amendment claim, the defendant must demonstrate that the claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence. Kimmelman v. Morrison, 477 U.S. 365, 375 (1986)