Portillo v. Fisher

115 F. App'x 357

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 13, 2004
• Docket: No. 04-55928
• Status: Published

Opinion

MEMORANDUM

**

Juan Portillo, a California state prisoner, appeals pro se the dismissal for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b) of his 42 U.S.C. § 1983 action claiming that his attorney provided ineffective assistance in violation of the Sixth Amendment during a criminal trial at which Portillo was found guilty of murder. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, see Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000), and affirm.

In his complaint, Portillo alleged that his attorney, a public defender, failed to investigate and present the defense that his codefendant shot the victim. He sought declaratory relief setting aside his conviction, and he also sought damages. Citing Smith v. City of Hemet, 356 F.3d 1138 (9th Cir.) (holding that conviction for resisting arrest barred excessive force claim), reh’g en banc granted, 371 F.3d 1045 (9th Cir.2004), he contends that the district court erred in dismissing his claims for damages as barred under Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). See Heck at 486-87 (holding that claim for damages for allegedly unconstitutional conviction not cognizable under § 1983 unless conviction has been reversed, expunged, declared invalid, or called into question by a federal court’s issuance of a writ of habeas corpus). This contention lacks merit because Portillo’s ineffective assistance claim attacks the validity of his conviction. See Ramirez v. Galaza, 334 F.3d 850, 856 (9th Cir.2003), cert. denied, — U.S.-, 124 S.Ct. 2388, 158 L.Ed.2d 963 (2004).

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 Ninth Circuit Rule 36-3.