Canales v. Roe, CV 96-6804-CBM(E).
| Decision Date | 11 December 1996 |
| Docket Number | No. CV 96-6804-CBM(E).,CV 96-6804-CBM(E). |
| Citation | 949 F.Supp. 762 |
| Court | U.S. District Court — Central District of California |
| Parties | Carlos Renan-Perez CANALES, Petitioner, v. Ernest C. ROE, Warden, et al., Respondents. |
Carlos Renan-Perez Canales, Petitioner pro se.
Carl N. Henry, Deputy Attorney General, Los Angeles, California, for Respondents.
ORDER ADOPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. The Court approves and adopts the Magistrate Judge's Report and Recommendation.
IT IS ORDERED that Judgment be entered denying and dismissing the Petition with prejudice.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Report and Recommendation and the Judgment herein by United States mail on Petitioner and counsel for Respondents.
LET JUDGMENT BE ENTERED ACCORDINGLY.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Consuelo B. Marshall, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California.
Petitioner filed a "Petition for Writ of Habeas Corpus by a Person in State Custody" on September 26, 1996. Respondents filed an Answer on October 24, 1996. Petitioner filed a Traverse on November 12, 1996.
Following conviction in state court, Petitioner's counsel failed to file a timely notice of appeal. Subsequently, the state courts barred the desired appeal as untimely and refused to relieve Petitioner from this default.
In post-conviction state court proceedings and herein, Petitioner has argued: (1) counsel's failure to file a timely notice of appeal denied Petitioner the effective assistance of counsel; and (2) the state courts' refusal to permit a belated appeal violated Petitioner's constitutional rights. Neither in the state court proceedings nor herein has Petitioner identified any arguable appellate issue; Petitioner has not attempted to demonstrate the probable success of the desired appeal.1
Federal habeas corpus relief may be granted "only on the ground that [the state prisoner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Mere errors of state law are not cognizable on federal habeas corpus. Id.; Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 479-80, 116 L.Ed.2d 385 (1991); Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 874-75, 79 L.Ed.2d 29 (1984). The "Antiterrorism and Effective Death Penalty Act of 1996" has imposed additional prerequisites to the granting of federal habeas relief under section 2254:
"An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim — (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) 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. § 2254(d) (as amended) ("section 2254(d)") (emphasis added).
For the reasons discussed herein, the Petition should be denied and dismissed with prejudice.2
In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court defined the general standard governing ineffective assistance of counsel claims. Under this standard, a petitioner generally must prove: (1) his or her "counsel's representation fell below an objective standard of reasonableness"; and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Id. at 688, 694, 104 S.Ct. at 2064-65, 2068 ("the Strickland standard"). Courts sometimes term the second enumerated requirement as the "prejudice prong" of the Strickland standard.
In applying the prejudice prong of the Strickland standard to counsel's failure to perfect a direct state appeal, different courts have reached different results. Some courts have denied relief in the absence of some showing that the desired appeal would have had a reasonable probability of success. See, e.g., Van Russell v. United States, 976 F.2d 323, 327 (7th Cir.1992), cert. denied, 508 U.S. 923, 113 S.Ct. 2376, 124 L.Ed.2d 280 (1993), overruled by Castellanos v. United States, 26 F.3d 717 (7th Cir.1994); Katz v. United States, 920 F.2d 610, 613-14 (9th Cir.1990), abrogated by Lozada v. Deeds, 964 F.2d 956 (9th Cir.1992); United States v. Popoola, 881 F.2d 811, 813-14 (9th Cir.1989), abrogated by Lozada v. Deeds, 964 F.2d 956 (9th Cir.1992); People v. Valdez, 789 P.2d 406, 409-11 (Colo.), cert. denied, 498 U.S. 871, 111 S.Ct. 193, 112 L.Ed.2d 156 (1990); Anderson v. State, 373 N.W.2d 438, 442 (S.D.1985), overruled by Loop v. Solem, 398 N.W.2d 140 (S.D.1986); cf. State ex rel. Schmelzer v. Murphy, 201 Wis.2d 246, 548 N.W.2d 45 (1996). Other courts have presumed prejudice, regardless of the desired appeal's probability of success. See, e.g., Romero v. Tansy, 46 F.3d 1024, 1030-31 (10th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 2591, 132 L.Ed.2d 839 (1995); United States v. Peak, 992 F.2d 39, 41-42 (4th Cir.1993); Bonneau v. United States, 961 F.2d 17, 20-23 (1st Cir.1992); Williams v. Lockhart, 849 F.2d 1134, 1137 n. 3 (8th Cir.1988); Beasley v. State, 126 Idaho 356, 359-60, 883 P.2d 714, 717-18 (Idaho App.1994).
Prior to 1992, the Ninth Circuit refused to presume prejudice in this circumstance. See Katz v. United States; United States v. Popoola. In Lozada v. Deeds, 498 U.S. 430, 111 S.Ct. 860, 112 L.Ed.2d 956 (1991), on certiorari from a case arising in the Ninth Circuit, the Supreme Court held that the question of whether to presume prejudice from counsel's failure to perfect a direct state appeal merited issuance of a certificate of probable cause. The Supreme Court noted that the Eighth and Tenth Circuits employed a rule of presumed prejudice. Id. at 432, 111 S.Ct. at 862.3 On remand, the Ninth Circuit adopted the rule of presumed prejudice and abrogated its prior, contrary decisions. Lozada v. Deeds, 964 F.2d 956, 957-58 (9th Cir.1992).
In the present case, Petitioner has not made any attempt to demonstrate the probable success of his desired appeal. Therefore, Petitioner's ineffective assistance of counsel claim turns upon whether the rule of presumed prejudice applies to a state prisoner presently seeking federal habeas relief. More precisely, Petitioner's claim fails unless the rule of presumed prejudice constitutes "clearly established Federal law, as determined by the Supreme Court of the United States," within the meaning of section 2254(d).
The United States Supreme Court has not determined whether prejudice will be presumed in a section 2254 habeas action where counsel's error consisted of a failure to perfect a direct state appeal. As previously discussed, lower federal and state courts reached differing conclusions on this issue in the years following announcement of the Strickland standard. The Lozada Supreme Court merely held that the issue of whether to presume prejudice was "debatable among jurists of reason" and/or "that a court could resolve the issues in a different manner" and/or that the issue was "adequate to deserve encouragement to proceed further." Lozada v. Deeds, 498 U.S. 430, 432, 111 S.Ct. 860, 862, 112 L.Ed.2d 956 (1991) (citations and quotations omitted). Neither the Lozada Supreme Court decision nor any other Supreme Court decision has rendered the rule of presumed prejudice under the Strickland standard "clearly established Federal law, as determined by the Supreme Court of the United States," within the meaning of section 2254(d). Although the Strickland standard itself is "clearly established ..." within the meaning of section 2254(d) (see Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir.1996)), the rule of presumed prejudice is not.4
Therefore, section 2254(d) prevents this Court from granting relief on Petitioner's ineffective assistance of counsel claim. See Lindh v. Murphy, 96 F.3d 856, 869 (7th Cir.1996) (), petition for cert. filed, (U.S. Oct. 10, 1996) (No. 96-6298); United States ex rel. Centanni v. Washington, 1996 WL 556978 *1 (N.D.Ill. September 27, 1996) ).
The Seventh Circuit recently held that the Supreme Court's decision in Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988) ("Penson") "clearly established" the rule of presumed prejudice, within the meaning of section 2254(d). See Fern v. Gramley, 99 F.3d 255 (7th Cir.1996) ("Fern"). With all due respect, the Fern Court's reasoning is unpersuasive and does not bind this Court. See, e.g., Jorsch v. LeBeau, 449 F.Supp. 485, 488 n. 9 (N.D.Ill.1978) (...
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Canales v. Roe
...that the Supreme Court had not clearly established a rule of presumed prejudice as a matter of federal law. See Canales v. Roe, 949 F.Supp. 762 (C.D.Cal.1996) (Canales I ). It, therefore, denied the writ. We affirm, but on a different In February, 1993, Canales was convicted of first-degree......