Delgado v. Lewis, 97-56162

• Citation: 223 F.3d 976
• Decision Date: 23 August 2000
• Docket Number: No. 97-56162,97-56162
• Parties: (9th Cir. 2000) JESUS GARCIA DELGADO, Petitioner-Appellee, v. GAIL LEWIS, Deputy Warden; ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, Respondents-Appellants. Office of the Circuit Executive Filed
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 976

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

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

No. 97-56162

Office of the Circuit Executive

U.S. Court of Appeals for the Ninth Circuit

Filed August 23, 2000

[Copyrighted Material Omitted] Sabrina Y. Lane, Deputy Attorney General, San Diego, California, for the respondents-appellants.

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

ON REMAND FROM THE UNITED STATES SUPREME COURT; D.C. No. CV-96-07241-R

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.

I

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 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 of appellate counsel. The district court granted the petition. We affirmed the district court in Delgado I.

II

One of the bases for our holding in Delgado I that Delgado received ineffective assistance of appellate counsel was his counsel's failure to comply with the requirements of Anders v. California, 386 U.S. 738 (1967) by filing what is known in California as a Wende brief. See People v. Wende, 600 P.2d 1071 (Cal. 1979). We had previously held that the Wende procedure's failure to follow the requirements of Anders rendered the Wende procedure fundamentally flawed, and therefore resulted in ineffective assistance of appellate counsel per se. See Davis v. Kramer, 167 F.3d 494, 496-98 (9th Cir. 1999). Thus, under circuit precedent applicable at the time, Delgado's counsel ineffectively assisted Delgado as a matter of law. In Smith, the Supreme Court upheld California's Wende procedure as constitutionally adequate. See 120 S. Ct. at 763. Thus, on remand we must examine Delgado's claims under the traditional test for ineffective assistance of counsel laid out in Strickland v. Washington, 466 U.S. 668 (1984).

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 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir.) (en banc).

On remand, Lewis continues to insist that AEDPA precludes federal courts from granting habeas relief because AEDPA requires complete deference to the state court decision. In Delgado I, we explained that nothing in AEDPA requires federal courts to turn a blind eye to state proceedings or to rubberstamp them. Indeed, the plain words of the statute repudiate this idea. 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) 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. S 2254(d) (West Supp. 1998).

Of course, federal habeas proceedings have always been conducted with an overlay of deference to the decisions of the highest appellate state courts. See, e.g., Miller v. Fenton, 474 U.S. 104, 112 (1985) (noting that federal habeas courts "should, of course, give great weight to the considered conclusions of a coequal state judiciary."). AEDPA imposes new restrictions on federal habeas review, as Justice O'Connor explained in Williams v. Taylor, 120 S. Ct. 1495, 1518-21 (2000). However, the existence of new statutory restrictions does not mean that federal habeas review has been eliminated, as Lewis seems to suggest. Indeed, to so hold would pose serious Suspension Clause difficulties. Rather, the application of AEDPA requires a more refined approach.

Under AEDPA, when examining a claim that the state court has unreasonably applied federal law, our first task is to determine whether the state court erred in its analysis of controlling federal law. See Tran v. Lindsey 212 F.3d 1143, 1155 (9th Cir. 2000). Then, we assess whether the error was caused by an unreasonable application of controlling federal law under 28 U.S.C. S 2254(d). See id. Under Williams, an application of federal law is unreasonable only if it is "objectively unreasonable". 120 S. Ct. at 1521.

The applicable law which guides our examination is supplied by Strickland, which is "clearly established Federal law" under AEDPA. See Jones v. Wood, 114 F.3d 1002, 1013 (9th Cir. 1997). Under Strickland, Delgado must first show that his attorney's performance was deficient in a way that fell below an objective standard of reasonableness. See 466 U.S. at 687-88. Second, he must show that he was prejudiced by the deficient performance to such an extent that the resulting proceedings were unreliable. See id. at 687. Applying that analysis, we conclude that the state court erred in concluding that Delgado received effective assistance of counsel within the meaning of Strickland.

There is no doubt that Delgado's trial counsel ineffectively assisted him. As the Seventh Circuit has said, "[t]he Sixth Amendment right to counsel, of course, guarantees more than just a warm body to stand next to the accused during critical stages of the proceedings; an accused is entitled to an attorney who plays a role necessary to ensure that the proceedings are fair." United States ex rel. Thomas v. O'Leary, 856 F.2d 1011, 1015 (7th Cir. 1988). Much of Delgado's sojourn through the criminal justice system was unaccompanied by even a lukewarm body. His trial counsel was absent from every single important court proceeding except the hearing on the change of plea. Even then, counsel could not make any representations to the court based on personal knowledge: he relied on others to explain the plea agreement to Delgado and answer his questions. At sentencing, no one spoke for Delgado; he was not even afforded a chance to speak for himself. Every time zealous advocacy was required, Delgado was met only with "paralyzed force, gesture without motion." Imposition of a disproportionate sentence was almost a foregone conclusion. Delgado's counsel's constructive withdrawal from the representation falls far below any objective standard of reasonableness. See Martin v. Rose , 744 F.2d 1245, 1250-51 (6th Cir. 1984).

Delgado faired even worse in the state appellate system. To establish objectively unreasonable appellate performance under Strickland, Delgado must show that his counsel "unreasonably failed to discover nonfrivolous issues and to file a merits brief raising them." Smith, 120 S. Ct. at 746. The appellate issues in this case would seem self-evident. However, we are not alone in that assessment: the state trial court certified that probable cause existed as to two...