Portillo

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…