Lazos v. Mitchell, No. 4:2007cv01736 - Document 17 (N.D. Cal. 2008)

Court Description: ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS. Signed by Judge Claudia Wilken on 10/21/08. (scc, COURT STAFF) (Filed on 10/21/2008)
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Lazos v. Mitchell Doc. 17 1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 No. C 07-01736 CW 9 FRANK LAZOS, United States District Court For the Northern District of California 10 11 12 13 ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS Petitioner, v. SHEILA E. MITCHELL, Respondent. / 14 15 Petitioner Frank Lazos, a state probationer who was in the 16 custody of the Santa Clara County Probation Department at the time 17 he filed his petition, seeks a writ of habeas corpus pursuant to 28 18 U.S.C. § 2254. 19 Petitioner has filed a traverse. 20 filed by the parties, the Court grants the petition. Respondent Sheila Mitchell opposes the petition. 21 22 Having considered all the papers BACKGROUND On February 14, 2005, a jury convicted Petitioner of second 23 degree robbery and petty theft. 24 suspended the imposition of sentence and placed Petitioner on 25 probation for three years. 26 the Public Defender of Santa Clara County, by Deputy Public 27 Defender Susannah Shamos. 28 the sixty day state law time limit. On April 5, 2005, the judge At trial, Petitioner was represented by Petitioner did not file an appeal within United States District Court For the Northern District of California 1 Petitioner discovered in February, 2006, that the notice of 2 appeal had not been filed. 3 represented by Paul Couenhoven, an attorney employed by the Sixth 4 District Appellate Program, filed in the California court of appeal 5 an application for relief from default to file a timely notice of 6 appeal. 7 application. 8 writ of habeas corpus in the California Supreme Court raising the 9 claim that he was deprived of his constitutional right to effective 10 assistance of counsel when his attorney failed to file a notice of 11 appeal after promising to do so, thus depriving him of an appeal he 12 otherwise would have pursued. 13 On May 16, 2006, Petitioner, On June 28, 2006, the appellate court denied the On November 28, 2006, Petitioner filed a petition for In a declaration, Ms. Shamos stated that she had left the 14 public defender’s office within a week of the date Petitioner was 15 sentenced. 16 before her departure from the office, but she believed she had 17 asked her supervisor to make sure a notice of appeal was filed. 18 his declaration, Petitioner stated that, when he was sentenced, Ms. 19 Shamos told him that she would file a notice of appeal and that the 20 appeal would take about eighteen months. 21 22 23 She had not filed a notice of appeal for Petitioner In On January 24, 2007, the California Supreme Court issued a one-sentence denial of the petition. LEGAL STANDARD 24 Under the Antiterrorism and Effective Death Penalty Act 25 (AEDPA), a district court may grant a petition challenging a state 26 conviction or sentence on the basis of a claim that was reviewed on 27 the merits in state court only if the state court's adjudication of 28 the claim: "(1) resulted in a decision that was contrary to, or 2 1 involved an unreasonable application of, clearly established 2 Federal law, as determined by the Supreme Court of the United 3 States; or (2) resulted in a decision that was based on an 4 unreasonable determination of the facts in light of the evidence 5 presented in the State court proceeding." 6 "Clearly established federal law" refers to "the holdings, as 7 opposed to the dicta, of [the Supreme] Court's decisions as of the 8 time of the relevant state-court decision." 9 Taylor, 529 U.S. 362, 402-04, 412 (2000). 10 United States District Court For the Northern District of California 28 U.S.C. § 2254(d). Williams (Terry) v. A state court's decision is "contrary to" Supreme Court law if 11 the state court "arrives at a conclusion opposite to that reached 12 by [the Supreme Court] on a question of law," or reaches a 13 different conclusion based on facts indistinguishable from a 14 Supreme Court case. 15 decision constitutes an "unreasonable application" of Supreme Court 16 precedent if the state court "either (1) correctly identifies the 17 governing rule but then applies it to a new set of facts in a way 18 that is objectively unreasonable, or (2) extends or fails to extend 19 a clearly established legal principle to a new context in a way 20 that is objectively unreasonable." 21 Williams, 529 U.S. at 412-13. A state court's Id. at 407. The standard of review under AEDPA is somewhat different where 22 the state court gives no reasoned explanation of its decision on a 23 petitioner's federal claim and there is no reasoned lower court 24 decision on the claim. 25 the only means of deciding whether the state court's decision was 26 objectively reasonable. 27 1197-98 (9th Cir. 2006); Greene v. Lambert, 288 F.3d 1081, 1088 28 (9th Cir. 2002); Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. In such a case, a review of the record is Plascencia v. Alameda, 467 F.3d 1190, 3 1 2000). 2 should conduct “an independent review of the record” to determine 3 whether the state court’s decision was an objectively unreasonable 4 application of clearly established federal law. 5 Hickman, 521 F.3d 1222, 1229 (9th Cir. 2008); Plascencia, 467 F.3d 6 at 1198; Delgado, 223 F.3d at 982. Richter v. 7 Even if the state court's ruling is contrary to or an 8 unreasonable application of Supreme Court precedent, that error 9 justifies habeas relief only if the error resulted in "actual 10 United States District Court For the Northern District of California When confronted with such a decision, a federal court prejudice." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). 11 12 DISCUSSION Petitioner argues that his trial counsel provided ineffective 13 assistance by failing to file a notice of appeal. 14 I. Legal Standard 15 A claim of ineffective assistance of counsel is cognizable as 16 a claim of denial of the Sixth Amendment right to counsel, which 17 guarantees not only assistance, but effective assistance of 18 counsel. 19 benchmark for judging any claim of ineffectiveness must be whether 20 counsel's conduct so undermined the proper functioning of the 21 adversarial process that the trial cannot be relied upon as having 22 produced a just result. 23 Strickland v. Washington, 466 U.S. 668, 686 (1984). The Id. In order to prevail on a Sixth Amendment ineffectiveness of 24 counsel claim, a petitioner must establish two things. 25 must establish that counsel's performance was deficient, i.e., that 26 it fell below an "objective standard of reasonableness" under 27 prevailing professional norms. 28 Second, he must establish that he was prejudiced by counsel's First, he Strickland, 466 U.S. at 687-88. 4 1 deficient performance, i.e., that "there is a reasonable 2 probability that, but for counsel's unprofessional errors, the 3 result of the proceeding would have been different." United States District Court For the Northern District of California 4 Id. at 694. The Strickland test applies to habeas claims that counsel was 5 ineffective for failing to file a notice of appeal. 6 Ortega, 528 U.S. 470, 477 (2000). 7 Strickland prong, a lawyer who disregards specific instructions 8 from his client to file a notice of appeal acts in a manner that is 9 professionally unreasonable. Roe v. Flores- In regard to the first Id. In those cases where the 10 defendant neither instructs counsel to file an appeal nor asks that 11 an appeal not be taken, counsel must consult with the defendant 12 “about an appeal when there is reason to think either (1) that a 13 rational defendant would want to appeal . . . or (2) that this 14 particular defendant reasonably demonstrated to counsel that he was 15 interested in appealing.” 16 Id. at 480. The forfeiture of an appeal to which a defendant has a 17 constitutional right demands a presumption of prejudice. 18 483. 19 situation. 20 that, but for counsel’s deficient performance, he would have 21 appealed. 22 requisite showing turns on the facts of a particular case. 23 485. 24 defendant “promptly expressed a desire to appeal will often be 25 highly relevant in making this determination.” 26 defendant’s inability to specify the points he would raise were his 27 right to appeal reinstated will not foreclose the possibility that 28 he can satisfy the prejudice requirement where there are other Id. at However, there is no per se prejudice rule in such a Id. at 484. Id. To show prejudice, the defendant must show The question whether the defendant has made the Id. at Evidence of non-frivolous grounds for appeal or that the 5 Id. However, “a 1 substantial reasons to believe that he would have appealed.” 2 at 486. 3 In a claim for ineffective assistance of counsel, a court need 4 not conduct a harmless error review under Brecht because “the 5 Strickland error analysis is complete in itself; there is no place 6 for an additional harmless-error review.” 7 F.3d 911, 918 n.7 (9th Cir. 2002) (citing Jackson v. Calderon, 211 8 F.3d 1148, 1154 n.2 (9th Cir. 2000) cert. denied, 531 U.S. 1072 9 (2001)). 10 United States District Court For the Northern District of California Id. 11 Avila v. Galaza, 297 II. Analysis Because the California Supreme Court did not issue a reasoned 12 decision in this case, this Court must conduct an independent 13 review of the record to determine if the state court’s denial of 14 the petition was contrary to or an unreasonable application of 15 United States Supreme Court authority. 16 The fact that Ms. Shamos’ declaration indicates that she told 17 Petitioner that she would file a notice of appeal in his case 18 indicates that she consulted with him and that he agreed that he 19 wanted to proceed with an appeal. 20 with filing the notice constitutes deficient performance under 21 Flores-Ortega. 22 That she did not follow through As indicated above, the forfeiture of an appeal as of right 23 due to counsel’s deficient performance establishes a presumption of 24 prejudice. 25 performance, he would have appealed. 26 declaration that she informed Petitioner that she would file a 27 notice of appeal on his behalf indicates that Petitioner wished to 28 appeal. However, Petitioner must show that, but for counsel’s Again, Ms. Shamos’ Further, Petitioner declares that, based on Ms. Shamos’ 6 1 representation to him, he assumed his appeal had been filed; that 2 he discovered, months after his sentencing, that no appeal had been 3 filed; that he immediately called the Sixth District Appellate 4 Program to request that an appeal be filed; and that he “always 5 wanted to appeal my conviction after a jury trial.” United States District Court For the Northern District of California 6 Petitioner, through his new attorney, diligently attempted to 7 file an appeal, and when that attempt failed, he filed a state 8 habeas petition and then a federal habeas petition. 9 Petitioner provides no showing of a non-frivolous ground for appeal Although 10 of his conviction that would warrant such an appeal, he has made 11 the requisite showing that, but for Ms. Shamos’ deficient 12 performance, he would have appealed his conviction. 13 Respondent argues that the state court reasonably rejected 14 Petitioner’s petition based on the manner in which sought relief. 15 Respondent theorizes that the state court could have rejected the 16 petition on a number of grounds: 17 law requirement for obtaining relief from default to file a notice 18 of appeal; (2) waiting five months to proceed from the state 19 appellate court to the state supreme court; (3) failing to provide 20 a statement from Ms. Shamos’ supervisor to establish what happened 21 after Ms. Shamos left the public defender’s office; and 22 (4) failing to establish deficient performance. 23 (1) failing to satisfy a state Although not stated explicitly, Respondent’s first and second 24 arguments seem to be that Petitioner’s claim is procedurally 25 defaulted. 26 The procedural default doctrine forecloses federal review of a 27 state prisoner's habeas claims if those claims were defaulted in 28 state court pursuant to an independent and adequate state 7 United States District Court For the Northern District of California 1 procedural rule. 2 Before applying the procedural default doctrine, a federal court 3 must determine that the state court explicitly invoked a state 4 procedural bar as an independent basis for its decision. 5 729. 6 consistently applied and well-established at the time of the 7 petitioner's purported default. 8 Dist. Court (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996). 9 respondent has the burden of proving that the state court ruling Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). To be adequate, the state procedural bar must be clear, Id.; Calderon v. United States 10 acts as a procedural bar to a petitioner’s claims. 11 Mueller, 322 F.3d 573, 585-86 (9th Cir. 2003). 12 Id. at The Bennett v. Respondent does not show that the state court’s denial was 13 based on an independent and adequate state procedural rule. 14 fact, the California Supreme Court’s opinion merely stated, 15 “Petition for writ of habeas corpus is denied.” 16 first and second arguments are unpersuasive. 17 In Thus, Respondent’s Respondent’s third argument fails because what happened in the 18 public defender’s office after Ms. Shamos left is not relevant to 19 Petitioner’s claim or Respondent’s defense. 20 that Ms. Shamos and Petitioner agreed that Ms. Shamos would file a 21 notice of appeal and she did not do so. 22 because, as discussed above, under Flores-Ortega, the applicable 23 Supreme Court authority, Petitioner has established deficient 24 performance. 25 recent United States Supreme Court case on point. 26 The relevant facts are The fourth argument fails Respondent fails even to address Flores-Ortega, the Because Petitioner has satisfied both Strickland prongs, his 27 claim of ineffective assistance of counsel succeeds. 28 the state court’s denial of his claim was contrary to and an 8 Therefore, 1 unreasonable application of Supreme Court authority. 2 CONCLUSION 3 For the foregoing reasons, the petition for writ of habeas 4 corpus is granted. 5 must allow Petitioner to proceed with the appeal of his conviction, 6 or vacate the conviction. 7 party shall bear his or her own costs. This case is remanded to state court, which Judgment shall enter accordingly; each 8 9 IT IS SO ORDERED. United States District Court For the Northern District of California 10 11 Dated: 10/21/08 CLAUDIA WILKEN United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9