Vela

MEMORANDUM ***

Abelardo Vela, Jr. appeals the district court’s order denying his federal habeas petition for ineffective assistance of counsel. We affirm.

United States v. Knights, 534 U.S. 112 , 122 S.Ct. 587 , 151 L.Ed.2d 497 (2001), upon which Vela relies, left open the question pertinent to Vela’s case that was resolved in Samson v. California, — U.S. -, 126 S.Ct. 2193 , 165 L.Ed.2d 250 (2006). Furthermore, Knights does not entail that the manner in which the search was conducted was unconstitutional. Therefore, the California Superior Court’s decision was neither contrary to nor an unreasonable application of clearly established federal law. 28 U.S.C. § 2254 (d)(1). This being so, Vela cannot have been prejudiced by his counsel’s failure to move to suppress, nor is his guilty plea implicated. Hill v. Lockhart, 474 U.S. 52 , 106 S.Ct. 366 , 88 L.Ed.2d 203 (1985).

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.

concurring:

I would dismiss the appeal because it does not meet the case or controversy requirement of Article III.

The district court based its denial of Appellant’s habeas petition on two independently sufficient grounds: (1) it found that his ineffective assistance of counsel claim was not cognizable because of Vela’s intervening guilty plea where Vela’s ineffective assistance of counsel claim did not implicate the knowing and voluntary nature of his plea; and (2) it found that Vela’s ineffective assistance of counsel claim failed because he cannot show that a motion to suppress would have been meritorious and therefore he cannot show prejudice. Reversing the district court would require finding that neither ground provides a sufficient basis for denying Vela’s habeas petition. In the Certificate of Appealability (“COA”), the district court only certified the issue of “whether [Vela’s] counsel’s failure to file a motion to suppress constituted ineffective assistance of *613 counsel.” It did not certify the issue of whether Vela’s intervening guilty plea rendered his claim non-cognizable. Appellant requests that this Court reject the district court’s findings concerning the…