Delgado v. Lewis

• Citation: 181 F.3d 1087
• Decision Date: 05 October 1998
• Docket Number: No. 97-56162,97-56162
• Parties: (9th Cir. 1999) JESUS GARCIA DELGADO, Petitioner-Appellee, v. GAIL LEWIS, Deputy Warden; ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, Respondents-Appellants. Submitted:
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1087

181 F.3d 1087 (9th Cir. 1999)

JESUS GARCIA DELGADO, Petitioner-Appellee, v. GAIL LEWIS, Deputy Warden; ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, Respondents-Appellants.

No. 97-56162

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Submitted: October 5, 1998¹

Opinion Filed: February 23, 1999

Opinion Withdrawn: June 23, 1999

Filed: June 23, 1999

Sabrina Y. Lane, Deputy Attorney General, San Diego, California, for the respondents-appellants.

Michael B. Dashjian, Solvang, California, for the petitioner-appellee.

Appeal from the United States District Court for the Central District of California. Manuel L. Real, District Judge, Presiding. D.C. No. CV-96-07241-R.

Before: Harry Pregerson, Dorothy W. Nelson, and Sidney R. Thomas, Circuit Judges.

ORDER

The opinion filed on February 23, 1999, and reported at 168 F.3d 1148 (9th Cir. 1999), is withdrawn, and the attached opinion is filed in its place.

With the amendments to the opinion, the petition for rehearing is denied. The full court has been advised of the suggestion for rehearing en banc, and no active judge of the court has requested a vote on whether to rehear the matter en banc. Thus, the suggestion for rehearing en banc is rejected.

OPINION

THOMAS, Circuit Judge:

Jesus Garcia Delgado claims his appellate counsel ineffectively assisted him by failing to raise any arguable issues in his appellate brief. The district court agreed and granted his petition for a writ of habeas corpus. We affirm.

I

Delgado is a forty-five-year old man of Hispanic descent who speaks and understands very little English. In 1994, he was arrested along with five codefendants and charged with manufacturing methamphetamine, possession of ephedrine with intent to manufacture methamphetamine, and possession of methamphetamine for sale. The felony complaint also sought sentence enhancements.

Delgado initially rejected a plea agreement and entered a plea of not guilty, but subsequently pled guilty to the three counts and the two sentence enhancements. As part of a global joint plea agreement, the state sentencing judge agreed not to sentence any of the defendants to more than fifteen years and agreed to consider mitigating factors at the sentencing hearing.

Delgado's appointed trial counsel did not attend the preliminary hearing, the sentencing hearing, or Delgado's signing of the change-of-plea agreement. In fact, an attorney for a codefendant explained the change-of-plea agreement and form to Delgado. Delgado's trial counsel did accompany his client to the change-of-plea hearing, but had to admit to the district court that he had not explained the change-of-plea form to Delgado and instead that he had relied on a codefendant's attorney to do so. The court asked the other attorney, who was present representing his own client, if he had explained the change-of-plea form to Delgado. The codefendant's attorney stated that the interpreter told him that Delgado had some questions, but that he had answered them and Delgado "appeared" to understand the explanation.

When the court asked Delgado how he pled to the first charge, he replied, "I have always said I was innocent. Oh, okay, guilty." He answered guilty to the other two charges and admitted the sentence enhancements.

Delgado's appointed counsel also failed to appear at the sentencing hearing. In his absence, an attorney for yet another codefendant indicated she would temporarily represent Delgado, whom she said had agreed to the arrangement. The sentencing hearing commenced, with the attorneys for all of the other defendants making arguments on behalf of their clients. Delgado's "substitute" counsel separately represented another codefendant at the hearing and, after extensive argument, obtained a favorable agreement resulting in probation for her client. When the court turned to Delgado's sentence, however, the substitute counsel simply said, "I'm just going to submit it on basically the Court's judgment as to exactly how much time Mr. Delgado should get." Delgado was never asked if he wished to make a statement on his own behalf, and the record is unclear about whether Delgado had the assistance of an interpreter. Finally, the judge noted that he had reviewed the probation office's report but had not "received any other documentation in connection with this case." He then sentenced Delgado to fifteen years - the maximum under the plea agreement - notwithstanding the fact that Delgado had no known criminal record.

Although making only a cameo appearance on behalf of his client before the imposition of sentence, Delgado's appointed counsel did manage to file a request for a certificate of probable cause, which stated that Delgado wanted to appeal his plea because: (1) "the translation to Spanish as well as the advice by the attorney regarding plea negotiations and actual entry of plea were inadequate," and (2) he had wanted to "withdraw his plea prior to sentencing but confusion in translation and attorney communication prevented this from being raised."

New counsel was appointed to argue the appeal for Delgado. In discharge of his duties, appellate counsel filed a brief that did not raise any issues or ask for reversal on any ground, not even those grounds identified by trial counsel in his request for a certificate of probable cause. Instead, the brief merely recited the allegations of the charging documents and invited the California Court of Appeals to conduct an independent review of the record.

Although his appointed appellate counsel had not withdrawn, Delgado filed his own supplemental brief alleging ineffective assistance of trial counsel under both the state and federal constitutions. He alleged that his trial counsel had been ineffective in advising him to enter a guilty plea, that his counsel had not consulted with him because of the difficulty in communicating through an interpreter, and that he had entered a guilty plea due to a mistaken belief that his sentence would be time served. Finally, he argued that his appointed counsel was absent from the sentencing hearing and that no attorney had argued on his behalf regarding mitigation.

The Court of Appeals for the Fourth District of California affirmed the conviction without opinion, stating only that it had conducted an independent review of the record and found no arguable issues. Delgado then filed a pro. per. petition in the Supreme Court of California, which was denied without opinion. Next, Delgado filed a petition for a state writ of habeas corpus in the Supreme Court of California, alleging ineffective assistance of trial and appellate counsel under both the state and federal constitutions on the same grounds he had raised in his pro. per. direct appeal. Delgado also asserted that his appellate counsel had been ineffective because he had failed to raise trial counsel's ineffectiveness in the appellate brief and failed to send him copies of the trial transcripts as required by California law. Finally, Delgado alleged that he misunderstood, due to his inability to speak or understand English, that his plea would subject him to a fifteen-year sentence. The Supreme Court of California denied his state habeas petition in a one sentence order.

On October 15, 1996, Delgado filed a petition for a writ of habeas corpus in federal district court pursuant to 28 U.S.C. 2254, alleging ineffective assistance of appellate counsel. The district court granted Delgado's petition, stating that unless the California Court of Appeals reinstated Delgado's direct appeal and provided him with new counsel within sixty days, he would be released from prison. Deputy Warden Lewis filed a timely notice of appeal with this court, but did not seek a stay of the district court's Order. Accordingly, the California Court of Appeals vacated its prior opinion, reinstated Delgado's direct appeal, appointed new counsel pursuant to the Order, but stayed the state proceedings pending the outcome of this appeal.

II

Delgado properly exhausted the remedies available to him in state court, as required by 28 U.S.C. 2254(b)(1), by filing a state writ of habeas corpus in the Supreme Court of California alleging ineffective assistance of trial and appellate counsel under Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). His allegations in the state court petition of ineffective assistance in violation of both the California and United States Constitutions were sufficient to "fairly present" the claim to the state court. See Duncan v. Henry, 513 U.S. 364, 365-66, 130 L. Ed. 2d 865, 115 S. Ct. 887 (1995). Although Delgado's petition did not specifically argue that the brief filed by his appellate counsel violated Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967), his petition was sufficient to alert the State to both state and federal precedent governing his claim of ineffective assistance of counsel, including Anders.

III

Because Delgado filed his federal habeas petition after April 1, 1996, the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") applies to his petition. See Lindh v. Murphy, 521 U.S. 320, 336, 138 L. Ed. 2d 481, 117 S. Ct. 2059 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir.) (en banc), cert. denied, 522 U.S. 1008, 118 S. Ct. 586, 139 L. Ed. 2d 423 (1997). Under AEDPA, a federal court may grant habeas relief if a state court adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C.A. 2254(d) (West Supp. 1998).

As recently noted by a panel of our court, AEDPA's standard of review provisions "reflect the . . . general requirement that federal courts not disturb state court...