160 F.3d 534 (9th Cir. 1998), 97-17232, Ortega v. Roe

Docket Nº:97-17232.
Citation:160 F.3d 534
Party Name:D.A.R. 11,305 Lucio Flores ORTEGA, Petitioner-Appellant, v. Ernest C. ROE, Warden, Respondent-Appellee.
Case Date:November 02, 1998
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 534

160 F.3d 534 (9th Cir. 1998)

D.A.R. 11,305

Lucio Flores ORTEGA, Petitioner-Appellant,

v.

Ernest C. ROE, Warden, Respondent-Appellee.

No. 97-17232.

United States Court of Appeals, Ninth Circuit

November 2, 1998

Submitted Oct. 5, 1998. *

Page 535

Ann H. Voris, Assistant Federal Defender, Fresno, CA, for petitioner-appellant.

Paul E. O'Connor, Deputy Attorney General, Sacramento, CA, for respondent-appellee.

Appeal from the United States District Court for the Eastern District of California; Garland E. Burrell, District Judge, Presiding. D.C. No. CV-95-05612-GEB.

Before: BEEZER, HALL and RYMER, Circuit Judges.

BEEZER, Circuit Judge:

Lucio Flores Ortega appeals the denial of his petition for habeas corpus. We address the question whether our opinion in United States v. Stearns, 68 F.3d 328 (9th Cir.1995), expressed a new rule barred from application in the present matter by Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). We hold that Stearns did not express a new rule, rather it was an application of the rule in Lozada v. Deeds, 964 F.2d 956 (9th Cir.1992). We have jurisdiction pursuant to 28 U.S.C. § 2253 and we reverse.

I

A

Petitioner pled guilty to second degree murder in a California Superior Court on October 13, 1993. At the plea hearing, petitioner was represented by a public defender. During the hearing the public defender wrote in her file "bring appeal papers." On March 24, 1994 petitioner attempted to file a notice of appeal which was rejected as untimely.

Petitioner filed a state court petition for a writ of habeas corpus on the ground that trial counsel was ineffective for failing to file a timely notice of appeal. Petitioner subsequently exhausted his state court remedies.

On July 27, 1995, petitioner filed a federal petition for habeas corpus. Respondent answered on November 17, 1995. The matter was referred to a magistrate judge, who held an evidentiary hearing on the limited issue of the credibility of petitioner's assertions that his state trial counsel promised to file a notice of appeal on his behalf.

After the hearing, the magistrate judge made the following findings: Petitioner "had little or no understanding" of what an appeal meant or the appeals process. Petitioner had not proved that his counsel had promised to file a notice of appeal. Petitioner...

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