John Matthew Toomey v. Bill J. Bunnell, Warden

with whom FARRIS, Circuit Judge, joins:

John Toomey appeals the district court’s denial of his petition for a writ of habeas corpus. Toomey alleges that his attorney’s failure to move for the suppression of certain evidence constituted ineffective assistance of counsel, and that the actions of California police and courts violated his due process rights. We affirm.

I

On May 23, 1982, Toomey was arrested in his automobile for armed robbery in San Diego, California. Toomey does not contend that the arresting officer, Officer Ray-bould, lacked probable cause. Officer Ray-bould opened the trunk of the automobile. He saw a large suitcase with money sticking out of one end, and the outline of a revolver visible.

There is some ambiguity about what Raybould did next. He testified at trial that he searched the suitcase at the scene. Toomey contends, on the basis of Ray-bould’s police report, that the search was carried out by Parole Officer Goya the next morning at the police station. The district court assumed the former. The police report indicates that a search was performed at the police station, but Toomey has not supplied the relevant page for the previous evening that would…

dissenting in part:

I dissent in part for the reason that defense counsel was deliberately so unscrupulous that the defendant was cheated out of a reasonable defense, in violation of the Sixth Amendment. The conduct of counsel was so outrageous that fraud and deceit were practiced on the criminal defense system.

I.

In the early morning hours of May 23, 1982, two armed suspects robbed a Safeway store in San Diego, California. Witness interviews and a records check focused police suspicions on Toomey as one of the Safeway robbers. Several hours later, local law enforcement officials, without a warrant, stopped and arrested Too-mey as he drove away from his residence. The officers then conducted a search of Toomey’s vehicle. Upon opening the trunk of the car, Officer Raybould, one of the arresting officers, discovered a partially unzipped suitcase.

What Officer Raybould did next with this suitcase is not clear from the record. Ray-bould testified at trial that he searched the suitcase at the scene of the arrest. Too-mey contrarily contends, based on Ray-bould’s police report and pretrial testimony, that Raybould merely impounded the suitcase and that the initial search was not…

898 F.2d 741 John Matthew TOOMEY, Petitioner-Appellant, v. Bill J. BUNNELL, Warden, Respondent-Appellee. No. 88-6402. United States Court of Appeals, Ninth Circuit. Submitted Feb. 7, 1989. * Decided March 13, 1990. John M. Toomey, San Diego, Cal., pro se. Steven H. Zeigen, Supervising Deputy Atty. Gen., San Diego, Cal., for respondent-appellee. Appeal from the United States District Court for the Southern District of California. Before FARRIS, FERGUSON and BEEZER, Circuit Judges. 1 BEEZER, Circuit Judge, with whom FARRIS, Circuit Judge, joins: 2 John Toomey appeals the district court's denial of his petition for a writ of habeas corpus. Toomey alleges that his attorney's failure to move for the suppression of certain evidence constituted ineffective assistance of counsel, and that the actions of California police and courts violated his due process rights. We affirm. 3 * On May 23, 1982, Toomey was arrested in his automobile for armed robbery in San Diego, California. Toomey does not contend that the arresting officer, Officer Raybould, lacked probable cause. Officer Raybould opened the trunk of the automobile. He saw a large suitcase with money sticking out of one end, and the…