Flores-Ortega v. Roe

MEMORANDUM ^**

Lucio Flores-Ortega (Flores) appeals the district court’s denial of his petition for a writ of habeas corpus, after remand of the case from the United States Supreme Court. See Roe v. Flores-Ortega, 528 U.S. 470, 487, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we reverse.

The Supreme Court instructed the district court, on remand, to determine: (1) whether the public defender had a duty to consult with Flores regarding the filing of an appeal, either because there were potential grounds for appeal or because he expressed interest in appealing; (2) if a duty to consult existed, whether the public defender satisfied her duty; and (3) if the public defender breached her duty to consult, whether Flores was prejudiced as a result. Id.; see Flores Ortega v. Roe, 209 F.3d 1122 (9th Cir.2000). On remand, the district court found that, although the public defender did not consult with Flores regarding the filing of an appeal, she had no duty to do so because she did not believe that he had a meritorious ground for appeal, and, if a consultation had taken place, she would have advised Flores against the filing of an appeal. The district court also found that Flores did not reasonably demonstrate an interest in filing an appeal because “had petitioner requested [the public defender] to file a notice of appeal, she would have done so.” The district court denied the habeas petition and Flores appeals for the second time.

A claim of ineffective assistance of counsel in violation of the Sixth Amendment requires a showing that counsel’s performance was deficient and that the deficient performance resulted in prejudice to the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Counsel has “a constitutionally imposed duty to consult with the defendant about an appeal when 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.” Roe, 528 U.S. at 480, 120 S.Ct. 1029.

We review the district court’s denial of a habeas petition de novo. Eslaminia v. White, 136 F.3d 1234, 1236 (9th Cir.1998). We conclude that Flores reasonably demonstrated an interest in filing an appeal, thereby creating a duty for the public defender to consult with Flores on whether to file an appeal. The fact that the public defender wrote a note to herself to “bring appeal papers” on the front of Flores’ sentencing report shows that Flores had demonstrated an interest in filing an appeal. The public defender’s testimony that she is unable specifically to recall the discussion with Flores is just that—a failure of recollection. It is insufficient to overcome the clear and logical inference to be drawn from her note. Further, the public defender’s testimony that she routinely brings appeal papers to sentencing hearings reinforces this inference. It seems unlikely that she would go out of her way to write a note reminding herself in this particular case to “bring appeal papers,” if she routinely does so, unless Flores had demonstrated an interest in filing an appeal. We also agree with the magistrate judge’s finding at the conclusion of the second evidentiary hearing, that the public defender did not “consult” with Flores-Ortega regarding the filing of an appeal.¹

The Warden contends that even if the public defender breached a duty to consult with Flores about an appeal, Flores has failed to show actual prejudice as a result of the failure to file an appeal. A showing of actual prejudice is unnecessary in this case, however, because the Supreme Court has already found that “[Flores’] case is unusual in that counsel’s alleged deficient performance arguably led not to a judicial proceeding of disputed reliability, but rather to the forfeiture of a proceeding itself.” Roe, 528 U.S. at 483, 120 S.Ct. 1029. While proceedings which occur carry a presumption of reliability, there can be no presumption of reliability of proceedings that never took place. Id. at 483-484, 120 S.Ct. 1029; United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). The Warden focuses on the wrong standard of prejudice. The only showing of prejudice required here is that “but for counsel’s deficient conduct, [the defendant] would have appealed.” Roe, 528 U.S. at 486, 120 S.Ct. 1029.

Because the public defender had a duty to consult with Flores and failed to do so, as a matter of law, prejudice is presumed. See Roe, 528 U.S. at 483, 120 S.Ct. 1029 (the complete denial of counsel at a critical stage of judicial proceedings carries a presumption of prejudice which renders a showing of actual prejudice unnecessary). The presumption of prejudice together with the evidence in the record demonstrates “that there is a reasonable probability that, but for counsel’s deficient failure to consult with [Flores] about an appeal, he would have timely appealed.” Id. at 484, 120 S.Ct. 1029. Thus, Flores was not afforded the effective assistance of counsel guaranteed by the Sixth Amendment.

The judgment is reversed and the case remanded to the district court with instructions to issue a conditional writ of habeas corpus releasing Flores from state custody, unless the state permits Flores to initiate and prosecute a direct appeal from his conviction within a reasonable period of time as determined by the district court.

REVERSED and REMANDED.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir. R. 36-3.

1 . We use the term “consult” in the same sense as did the Supreme Court. See Roe, 528 U.S. at 478, 120 S.Ct. 1029 ("We employ the term 'consult' to convey a specific meaning—advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant’s wishes.”).