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.
IT IS SO ORDERED.
ORDER DENYING WRIT OF HABEAS CORPUS
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.
1. THE MURDER.
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
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).
2. STATE COURT PROCEEDINGS.
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
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
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.
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.
1. LEGAL STANDARD.
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.
"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).
2. STANDARD OF PROOF AT PETITIONER'S COMPETENCY HEARING.
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.
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,
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.
3. EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.
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
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
4. EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
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
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.
IT IS SO ORDERED.