Profitt v. Howe

Background

Marvin Profitt filed a petition under 28 U.S.C. § 2254, asking the federal court to provide relief from his state-court convictions. A jury had found him guilty of felony driving with a blood alcohol content of 0.08 or higher and three misdemeanor offenses involving driving with a suspended or revoked license. He was sentenced to three years in county jail, with the last year on mandatory supervision. The California Court of Appeal affirmed the judgment, and the California Supreme Court denied review.

Profitt’s federal petition raised one claim: that his trial lawyer was ineffective during closing argument. The challenged comments included the lawyer’s statement that Profitt was a fool for not pleading guilty to the misdemeanor charges and the lawyer’s statements that he was not much of a drinker and did not want people drinking and driving. Profitt argued that these comments harmed his defense.

Legal standard

The court applied the federal standard for reviewing a state conviction under § 2254. Relief is available only when the state court’s decision contradicts or unreasonably applies clearly established United States Supreme Court law, or rests on an objectively unreasonable determination of the facts.

The court also applied the two-part test for ineffective assistance of counsel from Strickland v. Washington. A petitioner must show that counsel’s performance fell below an objective standard of reasonableness and that the deficient performance probably changed the result. Federal review under § 2254 is especially deferential when a state court has already considered the claim.

Court’s analysis

The California Court of Appeal had found that the “fool” comment was a strategic decision to concede Profitt’s obvious guilt on the misdemeanor charges, build credibility with the jury, and seek sympathy by portraying Profitt as unsophisticated. The federal court held that this conclusion was not objectively unreasonable.

The state appellate court also found that the “I’m really not a drinker” comments could have been a strategy to condemn irresponsible behavior while arguing that the jury still had to acquit unless the prosecution proved the charged crime’s elements. The federal court agreed that this conclusion was not objectively unreasonable. It noted that counsel also argued that drinking and driving below the legal limit was not itself a crime and that the jury had to follow the rules of criminal justice rather than convict based on dislike or fear.

The federal court further concluded that Profitt had not shown deficient performance. It noted that the evidence supporting the misdemeanor convictions was overwhelming and that substantial evidence supported the felony driving-under-the-influence conviction, including the officer’s observations, Profitt’s appearance and performance on field sobriety tests, the breath-test results, and Profitt’s admission that he had been drinking. The court independently found no prejudice even assuming, contrary to its conclusion, that counsel’s performance had been deficient.

Disposition

Judge James Donato denied the petition for a writ of habeas corpus. The court also denied a certificate of appealability because Profitt had not made the required showing that reasonable judges could debate the court’s assessment of his constitutional claim. The clerk was ordered to close the case.