                           NOT FOR PUBLICATION                             FILED
                    UNITED STATES COURT OF APPEALS                          FEB 28 2018
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

VICTOR PLATAS, AKA Victor Moreno,                No.    16-56093

                Petitioner-Appellant,            D.C. No.
                                                 2:04-cv-03383-CBM-LAL
 v.

A. K. SCRIBNER,                                  MEMORANDUM*

                Respondent-Appellee.

                   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.
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


                                           2
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]


                                          3
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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