VICTOR PLATAS, AKA Victor Moreno v. A. K. Scribner

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VICTOR PLATAS, AKA Victor Moreno,
Petitioner-Appellant,
v.
A. K. SCRIBNER,
Respondent-Appellee.
No. 16-56093
D.C. No.
2:04-cv-03383-CBM-LAL
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Consuelo B. Marshall, District Judge, Presiding
Submitted February 16, 2018**
Pasadena, California
Before: McKEOWN and WARDLAW, Circuit Judges, and MENDOZA,***
District Judge.
Victor Platas, a state prisoner, appeals the district court’s denial of his 28
U.S.C. § 2254 habeas corpus petition challenging his convictions for first-degree
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Salvador Mendoza, Jr., United States District Judge
for the Eastern District of Washington, sitting by designation.
FILED
FEB 28 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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murder with special circumstance and second-degree robbery. Platas challenges
the convictions on the grounds that he had ineffective assistance of counsel and his
confession should not have been admitted at trial because it was coerced. Because
the parties are familiar with the facts, we do not recite them here. We have
jurisdiction under 28 U.S.C. §§ 1291 and 2253. We affirm.
We review a district court’s denial of a habeas petition de novo, with factual
findings reviewed for clear error. Lambert v. Blodgett, 393 F.3d 943, 964 (9th Cir.
2004). Whether we give deference to the state court under the Antiterrorism and
Effective Death Penalty Act or credit the district court’s findings, the result is the
same.
We first address Platas’s claim that his confession was coerced. The
Constitution requires that confessions be made voluntarily, which means the
confession was “the product of a rational intellect and a free will.” United States v.
Tingle, 658 F.2d 1332, 1335 (9th Cir. 1981) (quoting Blackburn v. Alabama, 361
U.S. 199, 208 (1960)). Platas’s strongest arguments are that the officers promised
to request that murder charges not be brought against him, and that an officer said
that Platas “could be facing the death penalty.” Even crediting these arguments as
the district court did, Platas’s confession was not coerced.
“[I]n most circumstances, speculation that cooperation will benefit the
defendant or even promises to recommend leniency are not sufficiently compelling

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to overbear a defendant’s will.” United States v. Harrison, 34 F.3d 886, 891 (9th
Cir. 1994). Here, the officers’ promise to request that the prosecutor not charge
Platas with murder was not sufficient to overcome Platas’s free will. Platas does
not assert any circumstances that warrant an exception to this general rule, such as
a threat to inform the prosecutor of Platas’s failure to cooperate. See United States
v. Guerrero, 847 F.2d 1363, 1366 n.2 (9th Cir. 1988) (“[T]hreatening to inform the
prosecutor of a suspect’s refusal to cooperate violates her fifth amendment right to
remain silent.”).
Nor is the confession rendered involuntary by the officer’s statement that
Platas “could get the death penalty.” “[A] recitation of the potential sentence a
defendant might receive does not render a statement involuntary.” United States v.
Bautista-Avila, 6 F.3d 1360, 1365 (9th Cir. 1993) (citation and internal quotation
marks omitted); see also United States v. Haswood, 350 F.3d 1024, 1029 (9th Cir.
2003) (“Reciting potential penalties or sentences does not constitute coercion.”).
The death penalty is a potential sentence for murder during the commission of a
robbery in the State of California. See Cal. Penal Code §§ 189, 190.2(a)(17).
Platas’s reliance on United States v. Tingle does not change this result because the
officers’ statement in the present case does not rise to the level of psychological
coercion employed by the officers in Tingle. Tingle, 658 F.2d at 1335 (finding
statement coerced where officers recited maximum penalties, while also “prey[ing]

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upon the maternal instinct [to] inoculate fear in a mother that she will not see her
child”). Considering the totality of the circumstances, the officers’ conduct did not
overcome Platas’s free will such that his confession was involuntary. Therefore,
Platas is not entitled to habeas relief on this ground.
Finally, we address Platas’s claim that he received ineffective assistance of
counsel. Platas argues that his trial counsel’s failure to investigate whether the
confession was coerced and failure to move to suppress the confession was
deficient and prejudicial. We need not determine whether his counsel’s conduct
was deficient because, even if it was, Platas suffered no prejudice. See Strickland
v. Washington, 466 U.S. 668, 687–88 (1984). Because the confession was not
coerced, any effort to challenge it on that basis was not prejudicial. Even if the
confession had been excluded from trial, there was sufficient evidence to establish
that Platas acted with “reckless indifference to human life” as required for the
special circumstance. See Cal. Penal Code § 190.2(d). Platas has not met his
burden of showing that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. Accordingly, Platas is not entitled to habeas relief on
this ground.
AFFIRMED.

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