Riser v. Craven, 73-2567
| Citation | 501 F.2d 381 |
| Decision Date | 17 July 1974 |
| Docket Number | No. 73-2567,73-2567 |
| Parties | Roscoe R. RISER, Appellant, v. Walter E. CRAVEN, Warden, Folsom Prison, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Roscoe R. Riser, in pro. per.
A. Wells Peterson, Deputy Atty. Gen., Sacramento, Cal., for appellee.
Before CHAMBERS, MERRILL, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE and SNEED, Circuit Judges.
Riser appeals from an order denying, without an evidentiary hearing, his habeas corpus petition seeking relief from his state court conviction for first degree murder. Riser's habeas petition presented multiple challenges to his conviction, including his claim that his trial counsel's failure to file an appeal for him or to tell him how to file an appeal on his own behalf deprived him of the effective assistance of counsel.
In Gairson v. Cupp (9th Cir. 1969) 415 F.2d 352, we held that counsel for a defendant convicted of a crime in a state court has an affirmative duty to protect his client's right of appeal by filing a notice of appeal for his client or by telling him how he can proceed on his own behalf. The failure to perform the obligation deprives a defendant of effective assistance of trial counsel when the lawyer knows that his indigent client may want to appeal and that his client does not know how to do so. The Gairson rule was reaffirmed in Sanders v. Craven (9th Cir. 1973) 488 F.2d 478.
In Rodriquez v. United States (1969) 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340, the Supreme Court held in part that a defendant who was deprived of his right to appeal by the failure of trial counsel to file a notice of appeal was not required to specify the errors that he would have raised had an appeal been taken or to demonstrate that the denial of appeal was prejudicial in order to state a prima facie case warranting post-conviction relief. We applied this rule in Gairson and Sanders in granting federal habeas relief to state prisoners.
Riser's petition stated a prima facie case for relief under Rodriquez, Gairson, and Sanders. His appeal could be decided by a simple remand citing those cases but for Buster v. Hocker (9th Cir. 1970) 428 F.2d 820, a brief per curiam opinion decided after Gairson and before Sanders stating:
'In our view, Rodriquez v. United States is not necessarily applicable on federal habeas corpus review of state convictions.
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...not look at the merits of the underlying claim or error if one was made. Sanders v. Craven, 488 F.2d 478 (9th Cir.1973); Riser v. Craven, 501 F.2d 381 (9th Cir.1974). The question was simply whether the right to appeal was wrongfully denied. Doyle v. United States, 721 F.2d 1195 (9th Then c......
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...1453 (1946).17 Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964).18 This finding distinguishes Riser v. Craven, 501 F.2d 381, 382 (9th Cir. 1974), and Sanders v. Craven, 488 F.2d 478, 479-80 (9th Cir. 1973).1 The absence of prejudice in Herring was emphasized by one d......
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"A watchdog for the good of the order": the Ninth Circuit's en banc coordinator.
...J., U.S. Ct. of App. for the Ninth Cir., to Associates, Senior Judges, Re: Riser v. Craven (May 10, 1974) (addressing Riser v. Craven, 501 F.2d 381 (9th Cir. 1974)); Memo. from Alfred T. Goodwin to All Active Judges, Re: Riser (May 13, (75.) Memo. from J. Clifford Wallace, J., U.S. Ct. of A......