U.S. v. Sandoval-Lopez

Decision Date06 June 2005
Docket NumberNo. 03-35594.,03-35594.
Citation409 F.3d 1193
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Jose Maria SANDOVAL-LOPEZ, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Anne Walstrom, Federal Defenders of Eastern Washington and Idaho, Yakima, Washington, for the appellant.

Gregory M. Shogren, Assistant U.S. Attorney, Yakima, Washington, for the appellee.

Appeal from the United States District Court for the Eastern District of Washington, Robert H. Whaley, District Judge, Presiding. D.C. Nos. CV-02-00140-RHW CR-00-2083-RHW.

Before HALL, KLEINFELD, and CALLAHAN, Circuit Judges.

KLEINFELD, Circuit Judge.

This case involves a petition for a writ of habeas corpus by a prisoner who claims that his lawyer rendered him ineffective assistance by failing to file a notice of appeal.


Sandoval-Lopez was caught in Yakima, Washington, with fifteen pounds of heroin hidden in the manifold of his pickup truck. He had told a man who helped him with the mechanical work, and who turned out to be an undercover informant, that he regularly smuggled heroin in his truck from Mexico, for distribution in Washington and Oregon.

Though he was indicted for possession with the intent to distribute this very large quantity of heroin, his lawyer worked out a plea bargain — only seven years to serve for misprison of felony1 and use of a communication facility to facilitate the distribution of a controlled substance.2 Through this deal, defense counsel managed to obtain a remarkably favorable agreement to plead to a superseding information with statutory maximums of four and three years respectively,3 thereby avoiding the risk of a much longer sentence for possession with intent to distribute.

In his written plea agreement, Sandoval-Lopez waived his right to appeal. The agreement stated: "The defendant agrees not to appeal his convictions and any sentences imposed in accordance with this plea agreement." Sandoval-Lopez, his lawyer, and an interpreter all signed the plea agreement.

At the colloquy, when Sandoval-Lopez changed his plea to guilty, the district judge painstakingly obtained express assurances, on the record, from Sandoval-Lopez that he had talked with his lawyer about waiving his right to appeal, understood what waiving entailed, and intended to do so. The judge carefully explained to Sandoval-Lopez that after trial he would have the right to appeal, to have counsel appointed at no cost to him if he could not afford counsel, and to have all necessary papers and transcripts provided to him at no cost if he could not afford it. The judge then obtained Sandoval-Lopez's assurance that he understood his right to appeal, and that he would lose this right if he pleaded guilty. The judge explained to him that "this agreement provides that you agree not to appeal your convictions and any sentences imposed in accordance with this plea agreement," and Sandoval-Lopez said he understood that. The judge did not leave it at that, explaining further, "that's a very important right that you are giving up," and asking whether Sandoval-Lopez had "fully discussed" giving up his right to appeal with his lawyer. Sandoval-Lopez assured the judge that he had. Even that was not the end of the inquiry. The judge asked defense counsel whether he thought Sandoval-Lopez understood that he was giving up his right to appeal, and whether Sandoval-Lopez wanted to do so. Sandoval-Lopez's lawyer responded affirmatively to both questions.

A different judge conducted the sentencing, and although the sentence was precisely what Sandoval-Lopez had agreed to in the plea agreement, the sentencing judge said, "You have a right to appeal this sentence. If you don't appeal it within ten days, you lose that right." No appeal was filed, however, and nothing else happened for a year.

So far, this is about as solid a waiver of the right to appeal as can be imagined. After a year, however, Sandoval-Lopez alleged for the first time, in a petition for a writ of habeas corpus, that he had wanted to appeal. His petition urged many defects involving ineffective assistance of counsel, including that his lawyer did not tell him that the evidence was insufficient, did not argue for an aberrant behavior departure, and did not sufficiently advise him that accepting the plea could lead to deportation. In response to the question of whether he had appealed, Sandoval-Lopez wrote that "counsel refused to file," and that the conviction resulted from "prosecutor vindictiveness to set me up" instead of evidence:

Counsel failed to submit a notice of appeal. I asked him to but he never did and I did not discover this until the 10 day deadline was up — I do not understand English and had to find someone to interpret for me. By then I had ran out of time to file.

The district court denied the petition without an evidentiary hearing, and we granted a certificate of appealability limited to the question of whether defense counsel rendered ineffective assistance in violation of the Sixth Amendment by failing to file a notice of appeal.


Appellate counsel for Sandoval-Lopez makes a single argument, that the district court erred by denying him an evidentiary hearing because the record did not conclusively establish that he was not entitled to relief. We review denial of a petition for a writ of habeas corpus de novo,4 and review denial of an evidentiary hearing for abuse of discretion.5

The Supreme Court in Roe v. Flores-Ortega6 laid out the "proper framework for evaluating an ineffective assistance of counsel claim, based on counsel's failure to file a notice of appeal without respondent's consent."7 In Flores-Ortega, the district court conducted an evidentiary hearing.8 The district court found that the defendant neither asked his lawyer to file a notice of appeal, nor consented to her not filing one.9 They had not discussed it.10 The Supreme Court rejected the Ninth Circuit's rule that "[c]ounsel must file a notice of appeal unless the defendant specifically instructs otherwise."11

The framework imposed by the Court for determining whether there was ineffective assistance of counsel was (1) ask whether counsel consulted with the defendant about an appeal; (2) if not, was failure to consult deficient performance.12 Rejecting the Ninth Circuit rule then in effect,13 the Court held that the answer to the second question is not always "yes." The Court held that the deficient performance prong of Strickland v. Washington14 is satisfied in failure to consult cases where "there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing."15 For the "would want to appeal" branch, a "highly relevant factor" in determining whether a rational defendant would want to appeal is whether the plea was entered pursuant to a plea agreement, whether the defendant had been sentenced in accord with his agreement, and whether the plea agreement waived or reserved the right to appeal.

The Supreme Court also rejected the Ninth Circuit's per se rule on the prejudice prong of Strickland. The Court held that to show prejudice, the defendant "must demonstrate that there is a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed."16 Prejudice does not require that the defendant show that he had meritorious grounds for appeal, but "evidence that there were nonfrivolous grounds for appeal or that the defendant in question promptly expressed a desire to appeal will often be highly relevant in making"17 the determination whether there is a reasonable probability that the defendant would have appealed. Thus, the defendant does not have to show that he might have prevailed on appeal to show prejudice, just that he probably would have appealed had his lawyer asked.

The Flores-Ortega framework helps with our case, but does not dispose of it. Had the district court held an evidentiary hearing, and had the court found that Sandoval-Lopez was lying when he said in his petition that his lawyer "refused" to appeal, then Flores-Ortega might be directly on point. In the hypothetical scenario where Sandoval-Lopez never expressed any desire to appeal, Flores-Ortega would completely foreclose an ineffective assistance of counsel claim. In such a scenario, because there was no ground for appeal, as an appeal had been waived, and he had obtained the benefit of his very favorable plea bargain, no rational defendant would want to appeal. So Sandoval-Lopez's lawyer's failure to file a notice of appeal would not be deficient performance, if he and his client did not consult about an appeal.

Because the district court did not hold an evidentiary hearing, however, we have to assume, for purposes of our analysis, that after sentencing Sandoval-Lopez asked his lawyer to appeal and his lawyer did not do as he asked. He claims that he "asked him to" and his lawyer "refused." As contrary to common sense as it seems, we are compelled by the law to reverse the district court.

This result is troubling. The record establishes that, prior to the time Sandoval-Lopez claims he told his lawyer to appeal, the following had occurred: (1) Sandoval-Lopez and his lawyer had consulted about whether Sandoval-Lopez should waive his right to appeal in order to get the seven-year deal despite his being caught with fifteen pounds of heroin; (2) Sandoval-Lopez had, with full understanding, agreed in writing to waive his right to appeal; (3) the district judge had explained to Sandoval-Lopez that he had a right to appeal, and could do so at no expense to himself for counsel or papers; and (4) Sandoval-Lopez had orally reiterated his choice to waive this right in open court. Moreover, upon a careful review of Sandoval-Lopez's...

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    ...States v. Poindexter, 492 F.3d 263 (4th Cir.2007); Watson v. United States, 493 F.3d 960 (8th Cir.2007); United States v. Sandoval-Lopez, 409 F.3d 1193, 1195-99 (9th Cir.2005); United States v. Garrett, 402 F.3d 1262, 1265-67 (10th Cir.2005); Gomez-Diaz v. United States, 433 F.3d 788, 791-9......
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