Opinion
Submitted September 11, 2001 .
The panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Defendant was convicted, in the United States District Court Western District of Washington, Thomas S. Zilly, J., of, inter alia, armed bank robbery, and he appealed. The Court of Appeals held that: (1) defendant had no expectation of privacy in exterior of his car; (2) counsel was not ineffective for failing to adequately attack voluntariness of defendant's statement to police; and (3) evidence did not support claim of vindictive prosecution.
Affirmed.
Appeal from the United States District Court Western District of Washington Thomas S. Zilly, District Judge, Presiding.
Before KOZINSKI and GOULD, Circuit Judges, and SCHWARZER, Senior District Judge.
The Honorable William W Schwarzer, Senior United States District Judge for the Northern District of California, sitting by designation.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Thadius Lewis Mohr appeals his conviction of armed bank robbery, 18 U.S.C. §§ 2113(a) and (d); use of a firearm during a violent crime, 18 U.S.C. § 924(c); and felon in possession of a firearm,
Page 605.
18 U.S.C. §§ 922(g)(1) and 924(e). His principal contention is that he was denied the effective assistance of counsel, citing two grounds.
The first ground rests on counsel's failure to move to suppress evidence discovered during a warrantless search. The search consisted of an external inspection of a Ford Mustang suspected as the getaway car and disclosed external damage and the warmth of the hood. Because the car was parked on a relatively short driveway next to Mohr's residence and in plain view from the street, Mohr had no reasonable expectation of privacy. United States v. Humphries, 636 F.2d 1172, 1179 (9th Cir.1980). Moreover, Mohr had no reasonable expectation of privacy as to the exterior of the car. New York v. Class, 475 U.S. 106, 114, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986). Because Mohr has failed to show either inadequate performance of counsel or resulting prejudice, the district court did not err in failing to hold an evidentiary hearing. See Strickland v. Washington, 466 U.S. 668, 700, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
The second focuses on cumulative errors made by counsel without which, Mohr claims, the verdict would have been different. Mohr offers a potpourri of alleged shortcomings of counsel: failure to obtain a sufficient continuance, failure to present expert evidence on the effects of heroin withdrawal in support of the contention that Mohr's statement was involuntary, and failure to present Mohr's testimony adequately. Even were there a measure of merit to these contentions, there is no evidence that Mohr's attack on the voluntariness of his statement could have succeeded; hence, there is no showing of prejudice.
Mohr complains of vindictive prosecution when the government obtained a superseding indictment adding a gun count shortly before trial after plea negotiations had failed. The claim is without merit. United States v. Noushfar, 78 F.3d 1442, 1446 (9th Cir.1996).
Mohr contends that the Speedy Trial Act was violated in that seventy-two days elapsed between the filing of the indictment and the start of trial. The contention lacks merit because Mohr fails to exclude the two days during which his motion for appointment of new counsel was pending and the following five days before new counsel made his appearance. 18 U.S.C. § 3161(h)(1)(F) (2000).
AFFIRMED.