The opinion of the court was delivered by: William Alsup, United States District Judge.
ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS
This is a habeas corpus case filed by a state prisoner pursuant to 28 U.S.C. § 2254. The court ordered respondent to show cause why the writ should not be granted. Respondent has filed an answer and a memorandum of points and authorities in support of it, and has lodged exhibits with the court. Petitioner has responded with a traverse. The matter is submitted.
Petitioner was convicted of robbery in the Superior Court of the State of California in and for the County of San Mateo. He also was found to have suffered three prior robbery convictions in Oregon and, consequently, was sentenced to twenty-five years to life in state prison pursuant to California's Three Strikes Law. Petitioner appealed his conviction and sentence to the California Court of Appeal, which struck one of the priors, affirmed the conviction and base sentence (the court found that petitioner had two qualifying priors subjecting him to the base term of twenty-five years to life), but remanded the matter to the trial court so that it could consider whether to exercise its discretion and dismiss the priors. The court also concluded that the trial court had erred in not imposing five-year enhancements for each of the two prior convictions which were properly proved. Thus on remand petitioner was facing a possible sentence of thirty-five years to life. On remand the trial court struck one of the prior convictions, resulting in a sentence of sixteen years. No appeal was filed. Petitioner contends that his counsel was constitutionally ineffective by failing to file a notice of appeal on petitioner's behalf.
The petition in this case was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), so the provisions of that act apply to it. See Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499-1500 (9th Cir.), cert. denied, 522 U.S. 93 (1997) ("justice and judicial economy are better served by applying the Act to cases filed after the enactment date."). Under the AEDPA a district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's adjudication of the claim: "(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. § 2254 (d).
Petitioner asserts that his attorney was ineffective when he did not file a notice of appeal from the sentence imposed on remand, despite having been asked to do so by petitioner. Respondent asserts that any appeal would have been frivolous and that there is no evidence petitioner "expressed an interest" in taking an appeal.
1. Expansion of the record
Petitioner has provided copies of a number of letters as exhibits to his traverse. Rule 7 of the Rules Governing Section 2254 Cases in the United States District Court, 28 U.S.C. foll. § 2254, provides that the Court may expand the record to include, without limitation, "letters predating the filing of the petition in the district court. . . ." Rule 7(a), (b). Any such materials must be submitted to the party against whom they are offered, Rule 7(c), as they have been. The traverse carries a certificate of mailing showing that a copy was sent to the Attorney General, who has not chosen to respond.
The record is expanded to include the copies of letters which are exhibits to petitioner's traverse, exhibits A through I.
2. Evidence that petitioner wanted to appeal
Petitioner's re-sentencing occurred on January 9, 1998. The letters included as exhibits to petitioner's traverse include one dated January 20, 1998, in which he instructs his counsel to "file my notice of appeal before it's too late. It's my right!"*fn1 Traverse ex. B. Also provided is a letter from petitioner's counsel in reply, dated January 22, 1998, in which counsel strongly advises him not to appeal because the sentencing judge failed to follow proper state procedure in striking one prior and did not follow California Supreme Court guidelines. Id. ex. C. Counsel was concerned that if petitioner filed an appeal the prosecution would counter-appeal and win. Id. Petitioner also provides a copy of a letter to his counsel in which he accuses counsel of not sending his transcripts. Id. ex. D. This letter, dated February 18, 1998, says "my guess your waiting for the 60 Day limit is up first. . . . [sic]" Id. Also provided as part of this expanded record is a letter from the First District Appellate Project which says that it is an answer to a notice of appeal dated January 20, 1998, he sent to the project. Id. ex. E. The letter stated that the Court of Appeal had made its decision on April 30, 1997, and would not reopen the case, "therefore [no appeal] is pending at this time." Id. It is signed by a paralegal. It appears this is a reference to petitioner's first appeal, which resulted in a remand for re-sentencing, but it was the re-sentencing from which petitioner was attempting to appeal. It thus appears that this ...