Lozada v. State
| Decision Date | 30 March 1994 |
| Docket Number | No. 24996,24996 |
| Citation | 110 Nev. 349,871 P.2d 944 |
| Parties | Jose Manual LOZADA, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
On January 7, 1987, the district court entered a judgment of conviction pursuant to a jury verdict against Jose Manual Lozada. A jury found Lozada guilty of four controlled substance violations. Lozada did not immediately appeal from the judgment of conviction.
Lozada subsequently filed a proper person petition for post-conviction relief in the district court. Lozada claimed his trial counsel was ineffective for failing to inform Lozada of the right to appointed counsel on appeal and because counsel falsely informed Lozada that the public defender would perfect an appeal. The district court denied appellant relief without requiring the state to answer the petition.
This court dismissed Lozada's appeal from the district court's denial of post-conviction relief. Lozada v. State, 104 Nev. 863, 809 P.2d 610 (Order Dismissing Appeal, 1988). We ruled that Lozada failed to establish that his attorney's conduct prejudiced him. Specifically, Lozada failed to set forth any meritorious issues which he could have raised in an appeal from his conviction.
After exhausting his state remedies, Lozada petitioned the federal district court for a writ of habeas corpus. The federal district court dismissed Lozada's petition for failing to establish prejudice as required under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The district court subsequently denied Lozada a certificate of probable cause to appeal the denial of his petition. See 28 U.S.C. § 2253.
Lozada then petitioned the United States Court of Appeals for the Ninth Circuit for a certificate of probable cause. The Ninth Circuit denied the petition without comment. Lozada sought relief by petitioning the United States Supreme Court for a writ of certiorari. The Supreme Court granted Lozada's petition and remanded the matter to the Ninth Circuit. Lozada v. Deeds, 498 U.S. 430, 432, 111 S.Ct. 860, 861-62, 112 L.Ed.2d 956 (1991) (per curiam). The Court ruled:
We conclude that the Court of Appeals erred in denying Lozada a certificate of probable cause because ... Lozada made a substantial showing that he was denied the right to effective assistance of counsel. The District Court rested its analysis on the prejudice prong of the Strickland inquiry, and that was presumably the basis for the Court of Appeals' decision to deny a certificate of probable cause. We believe the issue of prejudice caused by the alleged denial of the right to appeal could be resolved in a different manner than the one followed by the District Court. Since Strickland, at least two courts of appeals have presumed prejudice in this situation. See Abels v. Kaiser, 913 F.2d 821, 823 (C.A.10 1990); Estes v. United States, 883 F.2d 645, 649 (C.A.8 1989); see also Rodriquez v. United States, 395 U.S. 327, 330, 89 S.Ct. 1715, 1717, 23 L.Ed.2d 340 (1969). The order of the Court of Appeals did not cite or analyze this line of authority....
Id. The Supreme Court remanded the matter to the Ninth Circuit for reconsideration in light of the cases the Court cited above.
On remand, the Ninth Circuit agreed with the cases cited by the Supreme Court and ruled that prejudice is presumed when a petitioner establishes "that counsel's failure to file a notice of appeal was without the petitioner's consent." Lozada v. Deeds, 964 F.2d 956, 958 (9th Cir.1992). The Ninth Circuit, therefore, remanded the case to the federal district court for a determination of whether Lozada's trial counsel failed to pursue an appeal without Lozada's consent. The Ninth Circuit ruled further that if the federal district court found that Lozada did not consent, the district court must grant Lozada relief unless "Nevada allows Lozada to take a delayed appeal within a reasonable time." Id. at 959.
Lozada does not provide a copy of the federal district court's determination upon remand. Lozada indicates, however, that he has filed a notice of appeal in this court from his 1987 convictions pursuant to the instructions of the federal district court. Lozada's notice of appeal provides: "Such notice of appeal is further filed by reason of that Order issued by the Honorable Lloyd George of the United States District Court whereby Attorney James Buchanan was ordered to file a Notice of Appeal pursuant to a Petition for Writ of Habeas Corpus...."
This court lacks jurisdiction to entertain Lozada's appeal. Lozada filed a notice of appeal from his 1987 judgment of conviction well after the thirty-day appeal period prescribed by NRAP 4(b). We have consistently held that an untimely notice of appeal fails to vest jurisdiction in this court. See, e.g., Jordon v. Director, Dep't of Prisons, 101 Nev. 146, 696 P.2d 998 (1985). We must, therefore, dismiss Lozada's appeal for lack of jurisdiction.
In light of the Ninth Circuit's failure to recognize the jurisdictional limitations on our authority to grant Lozada an appeal, we deem it necessary to detail Lozada's possible remedies. Our decision does not leave Lozada without a complete and adequate remedy. Lozada may obtain relief in the district court by filing a petition for a writ of habeas corpus.
Because Lozada previously petitioned the district court for post-conviction relief, Lozada must overcome the procedural hurdle of filing a successive petition. See NRS 34.810. 1 NRS 34.810(3) requires petitioners who file a successive petition to establish good cause and prejudice for rearguing issues which have been rejected on their merits in a previous petition or for raising new grounds in a successive petition. 2
To establish good cause to excuse a procedural default, a defendant must demonstrate that some impediment external to the defense prevented him from complying with the procedural rule that has been violated. See Passanisi v. Director, Dep't Prisons, 105 Nev. 63, 66, 769 P.2d 72, 74 (1989). Because Lozada filed a timely petition for post-conviction relief, his claim of ineffective assistance of counsel was properly presented to the district court. If that claim had merit, the denial of relief by the district court, and the subsequent denial of relief by this court, would constitute an impediment external to the defense that would excuse appellant's default in presenting the same claim in a successive petition. Therefore, we must determine whether appellant presented a viable claim for relief in his petition for post-conviction relief.
Lozada contended in his petition that his trial counsel was ineffective for failing to inform him of the right to appeal his conviction. Lozada contended further that his trial counsel falsely represented that the public defender would perfect an appeal.
To state a claim of ineffective assistance of counsel that is sufficient to invalidate a judgment of conviction, a defendant must demonstrate that counsel's performance fell below an objective standard of reasonableness, and that counsel's errors were so severe that they rendered the jury's verdict unreliable. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Warden v. Lyons, 100 Nev. 430, 683 P.2d 504 (1984), cert. denied, 471 U.S. 1004, 105 S.Ct. 1865, 85 L.Ed.2d 159 (1985). Lozada contended that his trial counsel acted unreasonably in failing to perfect an appeal without Lozada's consent. We presume for purposes of this opinion that counsel failed to perfect an appeal without Lozada's consent. 3
The failure to obtain Lozada's consent not to pursue an appeal would amount to unreasonable conduct. We have ruled that an attorney has a duty to perfect an appeal when a convicted defendant expresses a desire to appeal or indicates dissatisfaction with a conviction. See Fawaz v. State, 105 Nev. 682, 783 P.2d 425 (1989); Downs v. Warden, 93 Nev. 475, 568 P.2d 575 (1977). In Fawaz, for example, the appellant expressed a desire to challenge his conviction by filing a motion for new trial. Fawaz, 105 Nev. at 683, 783 P.2d at 425. We ruled that counsel was ineffective for failing to file a notice of appeal from the district court's denial of the motion for new trial. Id. Because Fawaz demonstrated a desire to challenge his conviction by filing a motion for new trial, counsel had a duty to perfect an appeal.
Similarly, in Downs, we noted that Downs never expressed a desire to appeal from his judgment of conviction and he seemed satisfied with the outcome of his case. We also noted that Downs had waited well over a year before asserting his alleged right to an appeal. Downs, 93 Nev. at 478, 568 P.2d at 576-77. We concluded: "In this factual setting, a trial attorney has no obligation to represent his client on appeal." Id. at 478, 568 P.2d at 577.
Downs implies that we would have reached the opposite conclusion had Downs expressed dissatisfaction with his conviction or expressed a desire to appeal within a reasonable time. We did not directly address in Downs the question of whether Downs knew of his right to appeal or whether counsel must inform his client of that right. Instead, we noted that the record was silent on the issue of whether Downs was informed of his right to appeal, and we concluded that under the peculiar circumstances of that case, Downs had failed to demonstrate that his attorney had been ineffective. Id. 4
The federal courts have indicated that trial counsel has an affirmative duty to instruct a convicted client of the right to appeal regardless of whether the client expresses a desire to appeal. The United States Supreme Court has never directly addressed this issue. The Court's...
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