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United States District Court, Northern District of California

April 1, 2003


The opinion of the court was delivered by: William Alsup, United States District Judge.


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.


A. Standard of review

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).

B. Issue Presented

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 letter was based on a misunderstanding of petitioner's intentions. In another letter from the appellate project, dated April 23, 1998, an attorney sets out her reasons for believing it would be most unwise for petitioner to appeal. Id. at F. The second sentence is: "This is in response to your letters to our office concerning your desire to appeal from your post-remand sentence." Id.

3. Analysis

The controlling test for ineffective assistance of counsel set out in Strickland v. Washington, 466 U.S. 668 (1984), has two prongs: the petitioner must show (1) that counsel's representation "fell below an objective standard of reasonableness," id. at 688, and (2) that counsel's deficient performance prejudiced the defendant, id. at 694.

It is professionally unreasonable for a lawyer to disregard specific instructions from his or her client to file a notice of appeal. Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (citing Rodriquez v. United States, 395 U.S. 327 (1969)). Counsel has an obligation to confer with his or her client regarding an appeal if "a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal, or (2) []this particular defendant reasonably demonstrated to counsel that he was interested in appealing." Id. at 480. Petitioner's counsel did consult with him, when in response to petitioner's letter saying that he wanted to appeal, counsel promptly wrote back explaining why, in his professional opinion, that would be a bad idea. If counsel consults, "the question of deficient performance is easily answered: Counsel performs in a professionally unreasonable manner only by failing to follow the defendant's express instructions with respect to an appeal." Id. at 478.

Thus, the issue in this case boils down to a simple one: has petitioner established that he specifically instructed his counsel to appeal, after the consultation? The evidence submitted by petitioner is set out in some detail above. There is a letter from petitioner to counsel stating that he wishes to appeal, traverse ex. B, and the advice letter from counsel in response id. ex. C. Petitioner's subsequent letter to counsel is dated February 18, 1998, which was still within the time to file a notice of appeal. The text is set out in the margin.*fn2 It is evident from this letter that petitioner still wanted to appeal, as he had already made clear to counsel before: he refers to his suspicion that counsel is letting the sixty-day time to appeal run out, and demands his transcripts. Given that there is no other obvious reason why he would want the transcripts aside from use on appeal, it is clear from this letter that petitioner had not given up his determination to appeal.*fn3

It is professionally unreasonable for a lawyer to disregard specific instructions from his or her client to file a notice of appeal. Roe, 528 U.S. at 477. Therefore, the failure of counsel to file a notice of appeal following receipt of this letter was below an objective standard of reasonableness in representation of a client. See Strickland 466 U.S. at 688 (standard).

The only prejudice petitioner must show is that counsel's ineffective assistance deprived him of an appeal he wanted to take. See Roe, 528 U.S. 470, 483-484.*fn4 This he has done. The writ will be granted.

C. Procedure on return to state appellate court

The Court will direct the clerk to mail a copy of this order to the First District Appellate Project. The Project is requested to contact Banks and obtain representation for him or inform him of the steps he need to take to obtain counsel.


Petitioner's request that the Court take judicial notice of a petitioner's filings in an unrelated state court case involving the same issue is DENIED as unnecessary. For the foregoing reasons, the petition for a writ of habeas corpus is GRANTED. Banks' conviction shall be vacated unless the State of California allows petitioner to take a delayed appeal within ninety days of the date of this order.

The clerk shall mail a copy of this order to the First District Appellate Project, Suite 201, 730 Harrison Street, San Francisco CA 94107.

The clerk shall close the file.


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