Canales v. Roe

Decision Date14 August 1998
Docket NumberNo. 97-55171,97-55171
Parties98 Cal. Daily Op. Serv. 6351, 98 Daily Journal D.A.R. 8805 Carlos Renan-Perez CANALES, Petitioner-Appellant, v. Ernest C. ROE, Warden; Attorney General of the State of California, Respondents-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Octavio A. Pedroza (argued) and James M. Harris, Sidley & Austin, Los Angeles, CA, for petitioner-appellant.

Carole W. Pollack and Carl N. Henry, Deputy Attorneys General, Los Angeles, California, for respondents-appellee.

Appeal from the United States District Court for the Central District of California Consuelo B. Marshall, District Judge, Presiding. D.C. No. CV-96-06804-CBM-(E).

Before: FLETCHER, FERNANDEZ, and RYMER, Circuit Judges.

FERNANDEZ, Circuit Judge:

Carlos Renan-Perez Canales appeals the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition, in which he claimed ineffective assistance of counsel. Canales argued that his trial attorney's late filing of a notice of appeal triggered a rule of presumed prejudice that entitles him to habeas relief. The district court determined 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 basis.

BACKGROUND

In February, 1993, Canales was convicted of first-degree murder in the Superior Court of the State of California in and for the County of Los Angeles. Judgment was entered on March 15, 1993. His trial counsel attempted to appeal the conviction, but filed the notice of appeal on May 17, 1993, two days after expiration of the sixty day period prescribed by Rule 31(a) of the California Rules of Court governing appeals in criminal cases. On May 25, 1993, the superior court sent Canales a letter refusing to certify the case for appeal and directing him to seek relief from the California Court of Appeal. On October 19, 1993, the superior court sent a second letter, after Canales had sent in a well-written request for trial transcripts. That letter again notified him that his notice of appeal was untimely and that he should seek relief from the California Court of Appeal. It gave him the address of that court.

On November 3, 1994, Canales attempted to file a belated notice of appeal with the California Court of Appeal. He indicated that he does not understand English, that his attorney had promised to file the notice of appeal for him, that he had not heard from his attorney since sentencing, that he filed the notice of appeal on May 17, 1993, and that the clerk's office had informed him that the filing was late. He said that he had waited more than a year before filing the belated notice of appeal because it was not until then that a friendly cell mate told him that he could file one. The Court of Appeal denied his belated notice of appeal because he had "failed to justify the 18-month delay in seeking leave to file a belated notice of appeal."

On December 19, 1994, Canales filed another belated notice of appeal, this time with the California Supreme Court, and again attributed the delay to his inability to speak or read English and his ignorance of California law. The Supreme Court treated his filing as a petition for review and denied it without comment. Canales subsequently filed a petition for a writ of habeas corpus with the California Court of Appeal, which was denied on the ground that Canales "is procedurally defaulted from raising this issue in unjustified successive habeas corpus petitions."

In March, 1995, Canales filed a petition for a writ of habeas corpus with the United States District Court for the Central District of California. The district court denied the petition for failure to exhaust. It granted Canales' motion to withdraw the petition in order to exhaust state remedies. After filing an unsuccessful habeas petition with the California Supreme Court in September, 1995, he filed a second habeas petition in the district court. The district court denied that petition, again on exhaustion grounds. Canales responded by filing a second unsuccessful habeas petition with the California Supreme Court in August, 1996.

Canales then filed the instant habeas petition on September 26, 1996. The petition asserted ineffective assistance of counsel on the ground that trial counsel failed to file a timely notice of appeal. The district court denied Canales' petition because the recently enacted Anti-Terrorism and Effective Death Penalty Act of 1996, amending 28 U.S.C. § 2254(d), precluded the relief Canales sought. The court concluded that the United States Supreme Court had not "clearly established" that a rule of presumed prejudice applies to state prisoners. See Canales I, 949 F.Supp. at 765-66.

On January 8, 1997, Canales filed a petition for certificate of appealability, which the district court granted in part on January 13, 1997. The COA was granted solely on the issue whether the rule of presumed prejudice adopted by the Ninth Circuit in Lozada v. Deeds, 964 F.2d 956 (9th Cir.1992) is "clearly established federal law as determined by the Supreme Court of the United States" for purposes of 28 U.S.C. § 2254(d). 1 That is the question we now decide, but we must go further and determine whether Canales may benefit from the rule.

JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction pursuant to 28 U.S.C. § 2254. We have jurisdiction pursuant to 28 U.S.C. §§ 1291, 2253.

We review the determination of what is "clearly established Federal law, as determined by the Supreme Court of the United States," under 28 U.S.C. § 2254(d)(1), as a question of law which we must decide de novo. See Allen v. Shalala, 48 F.3d 456, 457 (9th Cir.1995).

DISCUSSION

There is much force in Canales' argument that the Supreme Court's decisions in Strickland v. Washington, 466 U.S. 668, 691-94, 104 S.Ct. 2052, 2066-68, 80 L.Ed.2d 674 (1984), and Rodriquez v. United States, 395 U.S. 327, 330, 89 S.Ct. 1715, 1717, 23 L.Ed.2d 340 (1969), together dictate that prejudice will be presumed when trial counsel fails to file a notice of appeal. 2

In Strickland, the Court stated that, although in the usual case a defendant must establish both that counsel's performance was deficient and that he was prejudiced by that deficiency, "[i]n certain Sixth Amendment contexts, prejudice is presumed." Strickland, 466 U.S. at 692, 104 S.Ct. at 2067.

In Rodriquez, the Court held that, where counsel's failure to appeal within the allotted time precluded the appeal, a habeas petitioner seeking relief on grounds of ineffective assistance of counsel need not specify the points he would raise if his right to appeal were reinstated. See 395 U.S. at 328-30, 89 S.Ct. at 1716-17. Rodriquez involved a federal prisoner whose trial counsel failed to file a notice of appeal within the time allotted by then Federal Rule of Criminal Procedure 37(a) (now Federal Rule of Appellate Procedure 4(b)). See id. at 328, 89 S.Ct. at 1716. Rodriguez attempted to file a notice of appeal himself, but the trial judge ruled that the expiration of the appeal period deprived the court of jurisdiction. See id. He then sought relief pursuant to 28 U.S.C. § 2255, but was turned back because he had not disclosed what he "would raise on appeal" and had not demonstrated prejudice. Id. at 329, 89 S.Ct. at 1716-17. The Court reasoned that:

Those whose education has been limited and those, like petitioner, who lack facility in the English language might have grave difficulty in making even a summary statement of points to be raised on appeal. Moreover, they may not even be aware of errors which occurred at trial. They would thus be deprived of their only chance to take an appeal even though they have never had the assistance of counsel in preparing one.

Id. at 330, 89 S.Ct. at 1717. It concluded that Rodriguez need not "specify the points he would raise were his right to appeal reinstated." Id.

Strickland and Rodriquez together dictate that at the federal level a defendant is relieved of the obligation to specify the issues to be raised on appeal where counsel's failure to file a notice of appeal deprives the defendant of his right to appeal. In that sense, although Rodriquez does not say it in so many words, the defendant is not required to prove that he was prejudiced by counsel's inadequate performance. That does not, of course, speak directly to state court proceedings. 3

It appears that every federal court of appeals to address the issue has applied some form of a rule of presumed prejudice where counsel fails to file a notice of appeal. 4 Some of those cases have dealt with prisoners in federal custody, see Morales v. United States, 143 F.3d 94, 96-97 (2d Cir.1998); Castellanos, 26 F.3d at 718-19; United States v. Peak, 992 F.2d 39, 41-42 (4th Cir.1993); Bonneau v. United States, 961 F.2d 17, 18, 22 (1st Cir.1992); United States v. Davis, 929 F.2d 554, 557 (10th Cir.1991); Estes v. United States, 883 F.2d 645, 648-49 (8th Cir.1989), and some have dealt with prisoners in state custody, see Fern v. Gramley, 99 F.3d 255, 256-60 (7th Cir.1996); Romero v. Tansy, 46 F.3d 1024, 1030-31 (10th Cir.1995). Lozada, 964 F.2d at 958; Williams v. Lockhart, 849 F.2d 1134, 1137 n. 3 (8th Cir.1988).

In addition, we have applied the presumed prejudice rule to counsel's untimely filing of a notice of appeal. See United States v. Horodner, 993 F.2d 191, 195 (9th Cir.1993); see also United States v. Stearns, 68 F.3d 328, 329-30 (9th Cir.1995); but cf. United States v. Nagib, 44 F.3d 619, 620-22 (7th Cir.1995) (declining to decide whether presumed prejudice rule applies to untimely appeal). We have said that there is no real difference between failing to file a notice of appeal and filing one late because "[t]he legal effect is the same. The Lozada analysis applies." Horodner, 993...

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