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United States District Court, N.D. California

March 26, 2004.

DAVID E. PORTLOCK, Petitioner,
R. A. CASTRO, Respondent

The opinion of the court was delivered by: WILLIAM HASKELL ALSUP, District Judge


The court having entered a ruling today granting denying petitioner's habeas corpus petition, judgment is entered in favor of respondent. Petitioner shall obtain no relief by way of his petition.




  In this habeas corpus proceeding, petitioner David E. Portlock contends that his federal constitutional rights were violated during his criminal trial and appeals in the California courts. The record demonstrates otherwise. For the following reasons, the petition is DENIED.



  On July 2, 1996, police in Ukiah found Larry Long's body under the Talmage Bridge (Exh. J-2 at 303). The ensuing investigation led to petitioner and Eric Mehtlan (id. at 315-324). A friend of the two men told police that petitioner and Mehtlan had accosted the victim in the street and demanded fifty dollars (id. at 316-17). They had forced him into the friend's car and drove to the bridge, where all but the friend exited the vehicle (id. at 319). At that point the witness drove away, leaving petitioner, Mehtlan, and Long on the bridge (id. at 321).

  Over the next few days, the friend had several conversations with petitioner and Mehtlan in which he learned what happened after his departure (id. at 322). Petitioner and Mehtlan Page 2 admitted that they beat up the victim (id. at 330). The two defendants then threw Long off the bridge, counting to three in unison and watching as he clung to the edge before falling (id. at 323, 325-326). Petitioner and Mehtlan burned their clothes and wiped their car to cover their tracks (id. at 327). Mehtlan bragged, "We're now cold-blooded killers" (id. at 328). The friend eventually approached police to inform them about what he had seen and heard (id. at 315).


  Petitioner and Mehtlan turned themselves in to the local authorities on July 6, 1996 (id. at 332). They were arraigned and charged with first-degree murder (Exh. A at 9). Petitioner initially pleaded not guilty (id. at 13). On March 4, 1997, his public defender requested a hearing to determine whether he was competent to stand trial (id. at 46).

  At a hearing on May 5, 1997, the trial court heard testimony from one doctor for the prosecution, two for petitioner, and petitioner himself (Exh. J-11 at 4, 71, 118, 174). The court found petitioner competent to stand trial (Exh. J-12 at 200, 211). On June 3, 1997, he changed his plea from not guilty to guilty (Exh. J-13 at 8). The trial court entered judgment on that guilty plea on July 8, 1997, and sentenced petitioner to a term of twenty-five years to life in prison with the possibility of parole (Exh. J-15 at 12).

  Petitioner took a direct appeal. His conviction and sentence were affirmed by the California Court of Appeal. People v. Portlock, No. A080000 (1st Dist. Oct. 2, 1998). The California Supreme Court denied review of that decision. People v. Portlock, No. SO74736 (Cal. Dec. 22, 1998).


  Petitioner challenges his incarceration on three grounds under the federal constitution.

  First, he contends that the trial court required him to show his incompetence by clear and convincing evidence, not by the constitutionally-required preponderance of the evidence. He essentially argues that he met the preponderance standard and proved his incompetence.

  Second, petitioner alleges that he received ineffective assistance of appellate counsel in violation of the Fourteenth Amendment. He argues that the failure to raise on appeal the issue of his competence to plead guilty constituted ineffective assistance. Page 3

  Third, petitioner alleges he received ineffective assistance of trial counsel in violation of the Sixth Amendment, He argues that his public defender improperly advised him to change his plea from not guilty to guilty after he was found competent to stand trial.



  The Antiterrorism and Effective Death Penalty Act of 1996 applies to this habeas corpus petition. See Lindh v. Murphy, 521 U.S. 320, 327 (1997). Under the AEDPA, a district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). The first prong applies both to questions of law and to mixed questions of law and fact. Williams (Terry) v. Taylor, 529 U.S. 362, 407-09 (2001). The second prong applies to decisions based on factual determinations. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

  A state court decision is "contrary to" Supreme Court authority under the first clause of Section 2254(d)(1) only if "the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams (Terry), 529 U.S. at 412-13. A state court decision is an "unreasonable application of Supreme Court authority under the second clause of Section 2254(d)(1) if it correctly identifies the governing legal principle from the Supreme Court's decisions but "unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. The federal court on habeas review may not issue the writ "simply because that court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. Rather, the application must be "objectively unreasonable" to support granting the writ. See id. at 409. Page 4

  "Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary." Miller-El, 530 U.S. at 340. This presumption arises whether the finding was made by a trial or appellate court. Sumner v. Mata, 449 U.S. 539, 546-47 (1981); Bragg v. Galaza, 242 F.3d 1082, 1087 (9th Cir. 2001), amended by 253 F.3d 1150 (9th Cir. 2001). Conclusory assertions are not sufficient. Ibid. Under Section 2254(d)(2), a state court decision "based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state court proceeding." Miller-El, 530 U.S. at 340; see also Torres v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000).


  Petitioner claims that the trial court applied the wrong standard of proof at the hearing on whether he was competent to stand trial. But, "a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea." Tollett v. Henderson, 411 U.S. 258, 267 (1973). The competency hearing occurred about a month before the plea, so this issue was among those waived by the later plea. This disposes of the issue; nevertheless, recognizing that petitioner is pro se, in the alternative the Court will consider the merits.

  A criminal defendant must be competent to stand trial. Godinez v. Moran, 509 U.S. 389, 396 (1993). A state may not require a criminal defendant to prove his incompetence by any standard higher than a preponderance of the evidence. Medina v. California, 505 U.S. 437, 449 (1992). A state court's determination of competence to stand trial is entitled to a presumption of correctness in a federal habeas corpus proceeding. Evans v. Raines, 800 F.2d 884, 887 (9th Cir. 1986).

  At the competency hearing, both petitioner's counsel and the district attorney argued that the preponderance standard applied (Exh. J-12 at 194, 196). The trial judge indicated he understood the applicable standard (id. at 199). As the California Court of Appeal held, "the Page 5 record does not suggest the court applied any higher standard of proof [than preponderance]" (Exh. E at 5).

  Petitioner's contention that a different standard must have been used is based on his supposition that his evidence far out-weighed that of the state, so the only way he could have been found competent, he infers, was through application of the wrong standard. But one of the three doctors testified that he was competent, and some of the testimony from the other two supported the finding that he was competent (id. at 6). Plaintiff has not established that the state trial court used a standard other than preponderance of the evidence, much less rebutted the presumption of correctness applicable here.*fn1

  The Court of Appeal's decision was neither contrary to, nor based on an unreasonable application of, clearly established federal law. Nor was the trial court's determination that petitioner was competent to stand trial an unreasonable determination of facts in light of the evidence. Hence, petitioner would not be entitled to federal habeas relief on this claim even if the issue had not been waived by the plea.


  Petitioner argues that his appellate counsel's failure to argue that he was incompetent to plead guilty constituted ineffective assistance of counsel. This argument is unpersuasive.

  The Due Process Clause of the Fourteenth Amendment guarantees a criminal defendant effective assistance of counsel in his first appeal as of right. Evitts v. Lucey, 469 U.S. 387, 391-405 (1985). To succeed on this claim, petitioner must show that appellate counsel's conduct failed to meet an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's errors, he would have prevailed on appeal. Strickland v. Washington, 466 U.S. 668 (1984); Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989).

  It is important to note that appellate counsel has no constitutional duty to raise every non-frivolous issue requested by defendant. Selecting the stronger, and foregoing the weaker, of Page 6 the arguments available is one of the hallmarks of effective appellate advocacy. As such, appellate counsel will frequently remain above an objective standard of competence and have caused his client no prejudice for the same reason — because he or she declined to raise a weak issue. See Jones v. Barnes, 463 U.S. 745, 751-54 (1983); Miller, 882 F.2d at 1434.

  Petitioner's appellate counsel's conduct did not constitute ineffective assistance of counsel. The record fails to show petitioner was actually incompetent at the time he changed his plea. He offers no facts showing some change in his competency status between the trial competency hearing and the change-of-plea hearing. At the change-of-plea hearing, the judge went through the appropriate colloquy with petitioner, which need not be recounted in full here. It suffices to say that petitioner stated both that he understood the full panoply of constitutional rights he was waiving and that his waivers were voluntary and knowing. Furthermore, petitioner's own trial counsel never raised this issue. In fact, the public defender summarized their discussions for the court and set forth in detail the voluntary and knowing character of petitioner's waiver.

  It would have been fufile for appellate counsel to raise this issue, since it was not preserved in trial court. Furthermore, because the only evidence that petitioner was incompetent was the evidence which had been heard and rejected at the hearing on trial competency, raising this issue would have been seeking a second bite at the apple by arguing essentially the same issues in two contexts. That would have been a poor tactical choice. Appellate counsel's decision not to raise on appeal an issue of competence to plead guilty was objectively reasonable. In addition, defendant has not shown a reasonable probability that, but for counsel's alleged errors, he would have prevailed on appeal, so has not shown prejudice. Petitioner has not satisfied the Strickland standard. The state courts' rejection of this claim was not contrary to, or an unreasonable application of, clearly established Supreme Court authority.*fn2 Page 7


  Petitioner's final contention is that his trial counsel's advice that he plead guilty after being found competent constituted ineffective assistance of counsel under the Sixth Amendment.

  To prevail, petitioner must meet the two-part test of Strickland v. Washington, showing both that counsel's performance was deficient and that this deficiency prejudiced the defense. 466 U.S. at 687. Where, as here, the alleged error was providing incorrect information as to the maximum allowable punishment, the prejudice inquiry focuses on whether there is a reasonable probability that, but for counsel's erroneous advice, the defendant would have pleaded guilty. laea v. Sunn, 800 F.2d 861, 864-865 (9th Cir. 1986).

  Petitioner claims that his public defender warned him that if he pleaded not guilty, the prosecutor could add special circumstances to the charge. If proved at trial, these would elevate petitioner's sentence to either life in prison without the possibility of parole or death. No such special circumstances were actually added to the charge, nor is there any evidence the prosecutor threatened as much. Petitioner's public defender, in a letter to his client dated July 24, 1997, recounted their consultations leading up to the change of plea. The letter reiterated his opinion that pleading guilty was the proper tactical choice. Petitioner attaches declarations from his parents stating that the public defender told them "in very certain terms that my son would receive life without possibility of parole in prison, or death, if he did not enter a plea of guilty to the charge of first-degree murder" (Pet. Exh. A).

  Petitioner asserts that "there was no possibility of charging or sustaining any special circumstances with the murder charge" (Pet. 10). This is incorrect. As the Attorney General correctly points out in his papers, "The preliminary examination transcripts demonstrate not only that there was overwhelming evidence of petitioner's guilt, but also that there was ample Page 8 evidence to show the murder was committed during the course of a robbery and kidnaping, thereby subjecting petitioner to the death penalty" (Opp. 17).

  The public defender's advice to his client was within the range of competence demanded by the Sixth Amendment. Petitioner obviously now regrets pleading guilty, apparently because he clings to the mistaken belief that he would have been found not guilty at trial But regret alone cannot retroactively invalidate a voluntary and intelligent guilty plea based on sound advice. Counsel's performance was not deficient under Strickland. The state courts' rejection of this claim was not contrary to, or an unreasonable application of, clearly established Supreme Court authority.


  David E. Portlock's petition seeking federal habeas corpus relief is DENIED. The CLERK shall CLOSE the file.


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