OpenJurist

919 F2d 145 Portillo v. United States

919 F.2d 145

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Sammy Ray PORTILLO, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.

No. 89-16493.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 27, 1990.*
Decided Nov. 29, 1990.

Before WALLACE, DAVID R. THOMPSON and TROTT, Circuit Judges.

1

MEMORANDUM**

2

Sammy Ray Portillo, a federal prisoner, appeals pro se the district court's denial of his 28 U.S.C. Sec. 2255 motion. Portillo contends that he was denied effective assistance of counsel at his plea hearing.1 We review de novo, Doganiere v. United States, 914 F.2d 165, 167 (9th Cir.1990), and affirm.

3

Portillo's contention that he received ineffective assistance of counsel is meritless. To demonstrate ineffective assistance, a defendant must show that counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Portillo argues that he received ineffective assistance because his attorney told him that he would receive a five-year sentence in exchange for pleading guilty to one count of conspiracy to possess cocaine with intent to distribute. Portillo was sentenced to a fifteen-year term of imprisonment and a two-year special parole term. "[Portillo's] attorney's inaccurate prediction of what sentence [Portillo] would receive upon pleading guilty does not rise to the level of a gross mischaracterization of the likely outcome of the case, and thus does not constitute ineffective assistance of counsel." See Doganiere, 914 F.2d at 168.

4

Moreover, after holding an evidentiary hearing on Portillo's first habeas petition, filed in 1972, the district court made a finding of fact that no promises had been made to Portillo by his attorney regarding the sentence he would receive, only a prediction. This finding is amply supported by the record.2

5

Finally, Portillo suffered no prejudice from his attorney's sentencing prediction because, before accepting his guilty plea, the judge informed Portillo that he faced a maximum sentence of thirty-six years. Accordingly, the district court correctly denied Portillo's section 2255 motion because he did not state a claim of ineffective assistance of counsel. See Strickland, 466 U.S. at 687.

6

AFFIRMED.

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

*

The panel unanimously finds this case suitable for disposition without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

1

In his section 2255 motion, Portillo also argued that his attorney was not adequately prepared for trial. In his brief on appeal, however, Portillo has waived this issue and concedes that "the defense was ready for trial."

2

Portillo also contends that his attorney told him to lie during the plea hearing by telling the court that (1) no promises had been made about his sentence, and (2) the substance he possessed was cocaine. These contentions are meritless because they are not supported by the record