By Kent Gray

Triplicate staff writer

A twisted trail of incompetence by a pair of attorneys convicted in San Francisco's high-profile dog mauling case apparently will result in invalidation of state charges against a Pelican Bay State Prison guard.

Del Norte County Superior Court Judge William Follett last week agreed former correctional officer Jose Ramon Garcia received incompetent legal representation in his 1998 inmate assault trial and signed a habeas corpus petition challenging his conviction.

Garcia was represented by husband-and-wife attorneys Robert Noel and Marjorie Knoller. Noel and Knoller were convicted earlier this year of manslaughter after their neighbor, Diane Whipple, was attacked and killed by the couple's presa canario dogs.

andquot;If final, what this says is Jose served a couple years in prison he shouldn't have,andquot; said Garcia's new attorney Dennis Riordan. andquot;There was no legal basis for the time he served.andquot;

Yesterday, Del Norte County Senior Deputy District Attorney Jim Fallman said the petition will not be opposed. If there is no appeal from prosecutors, then the decision will stand and the state conviction will be overturned.

It's unclear, however, what the practical effect of the decision will be. Garcia, convicted in a state trial in 1998 on a charge of conspiracy to assault inmates, was sentenced to 4.3 years and released on parole in the spring of 2001.

However, Garcia and fellow correctional officer Michael Powers still face possible federal prison sentences. They were convicted on federal charges May 15, 2002 for soliciting inmates to attack child molestors and sex offenders and are facing a maximum of 10 years in federal prison. Sentencing is scheduled for Sept. 6.

andquot;It remains to be seen but it will be a factor,andquot; said Riordan. andquot;I was informed (the judge) was inclined to take the state sentence into consideration - and that is without the state sentence being invalidated. I hope they will look at it and decide Jose has already served time he shouldn't have and will take that into consideration.andquot;

Fallman said he wouldn't contest the competency of Garcia's previous legal counsel, in part because of the behavior exhibited in the dog-mauling case, but added he felt the charges were still valid.

andquot;Jose has already done all his prison time so there is no reason to oppose it,andquot; Fallman said. andquot;I agreed to set it aside because I am aware (of) and understand the arguments about his representation.andquot;

In Follett's decision he wrote that Noel, particularly, failed to protect Garcia's rights and allowed improper evidence into court.

andquot;It appears to the court, after careful review of the petition of habeas corpus ... the petitioner's trial counsel was ignorant of controlling court decisions relevant to the use of immunized and compelled statements against the petitioner in his criminal trial. That ignorance of the law led to the introduction of inadmissable and damning evidence against the petitioner,andquot; Follett wrote.

Ironically, Riordan, the man claiming Noel and Knoller are incompetent lawyers, is now Knoller's attorney in the dog-mauling case.

andquot;It's a tangled web. Is there a legal conflict? No. Is there an irony here? Sure,andquot; Riordan said yesterday. andquot;This was raised as a legal question when we filed in Del Norte County. Fallman wanted me thrown off the case because I was representing Marjorie Knoller. But I was representing Jose first.andquot;

Fallman said he can't defend Noel's performance in the Garcia case.

andquot;These same defense attorneys later proved their incompetence when they got on TV in the dog-mauling case and got themselves convicted in that case,andquot; said Fallman. andquot;They can't even protect their own rights.andquot;

However, Fallman said the main reason prosecutors will not oppose the habeas corpus is for practical reasons.

andquot;(Garcia) has done his state term,andquot; said Fallman. andquot;I don't want to spend another minute on a case where there is no time left to be served. It's a matter of not wasting taxpayer money.andquot;

Garcia's trial ranks as among the longest and most controversial in Del Norte County history.