FILED

NOT FOR PUBLICATION JUN 23 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

LARRY JOHN FARRIS, III, No. 08-16403

Petitioner - Appellant, D.C. No. 1:04-cv-01758-GEB-

KJM

v.

GEORGE STRATTON, Acting Warden; MEMORANDUM *

SCOTT M. KERNAN,

Respondents - Appellees.

Appeal from the United States District Court for the Eastern District of California Garland E. Burrell, District Judge, Presiding

Submitted June 15, 2010 ** San Francisco, California

Before: O’SCANNLAIN, TASHIMA, and BEA, Circuit Judges.

Larry John Farris, III, pled guilty in state court to two counts of robbery and

admitted use of a firearm in exchange for a stipulated sentence of fourteen years.

* 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). He did not appeal his conviction. After unsuccessfully pursuing state

postconviction relief, Farris filed an amended petition for a writ of habeas corpus

under 28 U.S.C. § 2254, claiming ineffective assistance of counsel. The district

court, adopting the findings and recommendations of the magistrate judge, denied

his petition. The district court granted a certificate of appealability and Farris

timely appealed.

The state court did not unreasonably conclude that Farris failed to establish

prejudice from counsel’s performance. See 28 U.S.C. § 2254(d)(1)-(2); Strickland

v. Washington, 466 U.S. 668, 687 (1984). Farris presented no evidence before the

state court that he would not have pled guilty but for counsel’s alleged errors. See

Hill v. Lockhart, 474 U.S. 52, 59 (2005). Even considering the testimony

presented at the federal evidentiary hearing, Knowles v. Mirzayance, 129 S. Ct.

1411, 1419 n.2 (2009), the state court’s conclusion was not unreasonable.

Moreover, Farris has not established that counsel performed deficiently.

Strickland, 466 U.S. at 687. Farris argues that counsel should have filed a motion

to suppress because some of the evidence against him was discovered pursuant to

an invalid search warrant. But it is apparent counsel decided not to file the motion

for strategic reasons, which are “virtually unchallengeable.” Strickland, 466 U.S.

at 690. Furthermore, counsel’s strategy was reasonable. The prosecutor would

2 likely have withdrawn a favorable plea offer upon the filing of a motion to

suppress, and that motion had little chance of success because of the good faith

exception to the exclusionary rule. United States v. Mendonsa, 989 F.2d 366, 367-

70 (9th Cir. 1993).

For these reasons, the judgment of the district court is AFFIRMED.

3