223 F.3d 976 (9th Cir. 2000), 97-56162, Delgado v. Lewis

Docket Nº:97-56162
Citation:223 F.3d 976
Party Name:JESUS GARCIA DELGADO, Petitioner-Appellee, v. GAIL LEWIS, Deputy Warden; ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, Respondents-Appellants.
Case Date:August 23, 2000
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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223 F.3d 976 (9th Cir. 2000)

JESUS GARCIA DELGADO, Petitioner-Appellee,



No. 97-56162

Office of the Circuit Executive

United States Court of Appeals, Ninth Circuit

August 23, 2000

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[Copyrighted Material Omitted]

Page 978

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

Michael B. Dashjian, Solvang, California, for the petitionerappellee.


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

THOMAS, Circuit Judge:

This appeal returns to us on remand from the Supreme Court for further consideration in light of Smith v. Robbins, 528 U.S. _______, 120 S.Ct. 746 (2000), decided after the issuance of our prior opinion in this case. See Delgado v. Lewis, 181 F.3d 1087 (9th Cir. 1999) ("Delgado I"). After reconsideration, we conclude that Smith alters our analysis, but not the result. Thus, we affirm the district court.


The factual background of this case was described in Delgado I, making it unnecessary for us to detail it here. In brief, Delgado pled guilty in California Superior Court to manufacturing methamphetamine, possession of ephedrine with intent to manufacture methamphetamine, and possession of methamphetamine for sale. His appointed trial counsel did not attend the preliminary hearing, the sentencing hearing or Delgado's signing of the change of plea agreement. At both the sentencing hearing and at the signing of the change of plea agreement, a lawyer for one of Delgado's co-defendants purported to represent Delgado in his own attorney's absence. At the change of plea hearing, Delgado initially stated that, "I have always said I was innocent." After an apparent pause, he then said, "Oh, okay, guilty." At the sentencing hearing, an attorney for one of Delgado's co-defendants was asked to represent Delgado without any prior notice. That attorney acquiesced and then merely left Delgado's fate to the mercy of the court and presented no mitigating evidence. Delgado was never asked if he wished to make a statement in his own behalf. The record is unclear whether Delgado, who speaks very little English, had the benefit of an interpreter. Delgado received the maximum sentence allowable despite having no prior criminal record. His sentence far exceeded those of his co-defendants whose counsel made presentations on their behalf.

Delgado's appointed counsel subsequently filed 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

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raised." The trial court certified the issues for appeal.

Despite the probable cause issue certification, Delgado's new appointed counsel for appeal filed a brief that did not raise any issues or ask for reversal on any ground, but simply invited the California Court of Appeal to conduct an independent review of the record. Delgado filed his own supplemental brief alleging ineffective assistance of trial counsel. The California Court of Appeal affirmed the conviction without opinion. Delgado's pro per petition before the Supreme Court of California was also denied without opinion. Delgado then filed a petition for a writ of habeas corpus in the Supreme Court of California, alleging ineffective assistance of both trial and appellate counsel. His petition was denied in a one sentence order.

After properly exhausting his state remedies, see Delgado I at 1151, Delgado then filed a petition for a writ of habeas corpus in federal district court pursuant to 28 U.S.C. S 2254, alleging ineffective assistance...

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