(HC) Harris v. Frauenheim

• Court: District Court, E.D. California
• Decided: September 7, 2023
• Docket: 1:19-cv-01203
• Status: Unknown

Opinion

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 GERALD BRENT HARRIS, Case No. 1:19-cv-01203-JLT-SAB-HC

12 Petitioner, SUPPLEMENTAL FINDINGS AND RECOMMENDATION RECOMMENDING 13 v. EXPANSION OF RECORD AND EVIDENTIARY HEARING, IF 14 SCOTT FRAUENHEIM, NECESSARY, ON INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM FOR 15 Respondent. FAILURE TO FILE NOTICE OF APPEAL

16 17 Petitioner, represented by counsel, is a state prisoner proceeding with a petition for writ 18 of habeas corpus pursuant to 28 U.S.C. § 2254. 19 I. 20 BACKGROUND 21 On September 4, 2014, Petitioner was convicted after a jury trial in the Kern County 22 Superior Court of second-degree murder. The jury also found true the special allegations that 23 Petitioner personally discharged a firearm causing death. (2 CT1 394–95, 406.) The trial court 24 sentenced Petitioner to an indeterminate term of fifteen years to life for second-degree murder 25 plus twenty-five years to life for the personal gun use enhancement. (2 CT 406; 7 RT2 1550.) On 26 March 28, 2018, the California Court of Appeal, Fifth Appellate District ordered that the 27 1 “CT” refers to the Clerk’s Transcript on Appeal lodged by Respondent on April 15, 2021. (ECF No. 26.) 1 sentence be “vacated and the case remanded for the trial court to exercise its discretion whether 2 to impose or to strike the gun use enhancement pursuant to section 12022.53 as amended [by 3 Senate Bill No. 620].” People v. Harris, No. F070236, 2018 WL 1516967, at *10 (Cal. Ct. App. 4 Mar. 28, 2018). The judgment was otherwise affirmed. Id. The California Supreme Court denied 5 Petitioner’s petition for review on June 13, 2018. (LD3 19.) On November 1, 2018, the trial court 6 re-imposed the same sentence of fifteen years to life for second-degree murder plus twenty-five 7 years to life for the personal gun use enhancement. (LD 20.) 8 On September 3, 2019, Petitioner filed the instant federal petition for writ of habeas 9 corpus. (ECF No. 1.) As various claims were pending in a collateral challenge in the California 10 Court of Appeal, this Court stayed the petition on January 6, 2020, so that Petitioner could 11 exhaust his state remedies. (ECF No. 10.) On November 7, 2019, the California Court of Appeal, 12 Fifth Appellate District denied Petitioner’s state habeas petition without prejudice for failing to 13 first file a petition in the Kern County Superior Court and for failing to include copies of 14 reasonably available documentary evidence supporting Petitioner’s claims. (LD 21.) On 15 February 17, 2021, the California Supreme Court summarily denied Petitioner’s state habeas 16 petition that was filed on July 23, 2020. (LD 22.) That same day, the California Supreme Court 17 also denied Petitioner’s subsequent state habeas petition that was filed on September 21, 2020, 18 with citation to In re Miller, 17 Cal.2d 734, 735 (1941), noting that “courts will not entertain 19 habeas corpus claims that are repetitive.” (LD 23.) On March 1, 2021, this Court lifted the stay in 20 this matter. (ECF No. 24.) 21 In the petition, Petitioner raised the following claims for relief: (1) instructional errors; 22 (2) ineffective assistance of trial and appellate counsel; (3) erroneous admission of prejudicial 23 evidence; and (4) abuse of discretion regarding Petitioner’s sentence. (ECF No. 1 at 4–7, 12.)4 24 On December 21, 2021, the Court issued findings and recommendations recommending that an 25 evidentiary hearing be held on Petitioner’s ineffective assistance of counsel claim for failure to 26 file a notice of appeal and denial of the remaining claims for relief in the petition for writ of 27 3 “LD” refers to the documents lodged by Respondent on April 15, 2021. (ECF No. 26.) 1 habeas corpus. (ECF No. 35.) On July 8, 2022, the assigned district judge adopted the findings 2 and recommendations and ordered that an evidentiary hearing be held, but “stop[ped] short of 3 finding that the allegations would definitely entitle Petitioner to relief.” (ECF No. 40 at 10, 9 4 n.2.) Respondent filed a motion for reconsideration regarding whether it is appropriate to hold an 5 evidentiary hearing without first definitively resolving the prejudice prong of Petitioner’s 6 ineffective assistance of counsel claim. (ECF No. 41.) The assigned district judge granted 7 Respondent’s motion for reconsideration, vacated the order for an evidentiary hearing, appointed 8 counsel for Petitioner, and referred this matter back to the Court to set a briefing schedule and 9 issue further findings and recommendations regarding Petitioner’s claim for ineffective 10 assistance of counsel related to the failure to file a notice of appeal. (ECF No. 43.) Petitioner 11 filed a supplemental traverse, and Respondent filed a response. (ECF Nos. 47, 48.) 12 II. 13 STANDARD OF REVIEW 14 Relief by way of a petition for writ of habeas corpus extends to a person in custody 15 pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws 16 or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 17 529 U.S. 362, 375 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed 18 by the U.S. Constitution. The challenged conviction arises out of the Kern County Superior 19 Court, which is located within the Eastern District of California. 28 U.S.C. § 2241(d). 20 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act 21 of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its 22 enactment. Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th 23 Cir. 1997) (en banc). The instant petition was filed after the enactment of AEDPA and is 24 therefore governed by its provisions. 25 Under AEDPA, relitigation of any claim adjudicated on the merits in state court is barred 26 unless a petitioner can show that the state court’s adjudication of his claim: 27 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme 1 (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. 2 3 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 97–98 (2011); Lockyer v. Andrade, 538 4 U.S. 63, 70–71 (2003); Williams, 529 U.S. at 413. 5 As a threshold matter, this Court must “first decide what constitutes ‘clearly established 6 Federal law, as determined by the Supreme Court of the United States.’” Lockyer, 538 U.S. at 71 7 (quoting 28 U.S.C. § 2254(d)(1)). In ascertaining what is “clearly established Federal law,” this 8 Court must look to the “holdings, as opposed to the dicta, of [the Supreme Court’s] decisions as 9 of the time of the relevant state-court decision.” Williams, 529 U.S. at 412. “In other words, 10 ‘clearly established Federal law’ under § 2254(d)(1) is the governing legal principle or principles 11 set forth by the Supreme Court at the time the state court renders its decision.” Id. In addition, 12 the Supreme Court decision must “‘squarely address [] the issue in th[e] case’ or establish a legal 13 principle that ‘clearly extend[s]’ to a new context to the extent required by the Supreme Court in 14 . . . recent decisions”; otherwise, there is no clearly established Federal law for purposes of 15 review under AEDPA. Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2009) (quoting Wright v. 16 Van Patten, 552 U.S. 120, 125 (2008)); Panetti v. Quarterman, 551 U.S. 930 (2007); Carey v. 17 Musladin, 549 U.S. 70 (2006). If no clearly established Federal law exists, the inquiry is at an 18 end and the Court must defer to the state court’s decision. Musladin, 549 U.S. 70; Wright, 552 19 U.S. at 126; Moses, 555 F.3d at 760. 20 If the Court determines there is governing clearly established Federal law, the Court must 21 then consider whether the state court’s decision was “contrary to, or involved an unreasonable 22 application of, [the] clearly established Federal law.” Lockyer, 538 U.S. at 72 (quoting 28 U.S.C. 23 § 2254(d)(1)). “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the 24 state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question 25 of law or if the state court decides a case differently than [the] Court has on a set of materially 26 indistinguishable facts.” Williams, 529 U.S. at 412–13; see also Lockyer, 538 U.S. at 72. “The 27 word ‘contrary’ is commonly understood to mean ‘diametrically different,’ ‘opposite in character or nature,’ or ‘mutually opposed.’” Williams, 529 U.S. at 405 (quoting Webster’s Third New 1 International Dictionary 495 (1976)). “A state-court decision will certainly be contrary to 2 [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the 3 governing law set forth in [Supreme Court] cases.” Id. If the state court decision is “contrary to” 4 clearly established Supreme Court precedent, the state decision is reviewed under the pre- 5 AEDPA de novo standard. Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc). 6 “Under the ‘reasonable application clause,’ a federal habeas court may grant the writ if 7 the state court identifies the correct governing legal principle from [the] Court’s decisions but 8 unreasonably applies that principle to the facts of the prisoner’s case.” Williams, 529 U.S. at 413. 9 “[A] federal court may not issue the writ simply because the court concludes in its independent 10 judgment that the relevant state court decision applied clearly established federal law erroneously 11 or incorrectly. Rather, that application must also be unreasonable.” Id. at 411; see also Lockyer, 12 538 U.S. at 75–76. The writ may issue only “where there is no possibility fair minded jurists 13 could disagree that the state court’s decision conflicts with [the Supreme Court’s] precedents.” 14 Richter, 562 U.S. at 102. In other words, so long as fair minded jurists could disagree on the 15 correctness of the state court’s decision, the decision cannot be considered unreasonable. Id. If 16 the Court determines that the state court decision is objectively unreasonable, and the error is not 17 structural, habeas relief is nonetheless unavailable unless the error had a substantial and injurious 18 effect on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). 19 The Court looks to the last reasoned state court decision as the basis for the state court 20 judgment. Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018); Stanley v. Cullen, 633 F.3d 852, 859 21 (9th Cir. 2011). If the last reasoned state court decision adopts or substantially incorporates the 22 reasoning from a previous state court decision, this Court may consider both decisions to 23 ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 24 2007) (en banc). “When a federal claim has been presented to a state court and the state court has 25 denied relief, it may be presumed that the state court adjudicated the claim on the merits in the 26 absence of any indication or state-law procedural principles to the contrary.” Richter, 562 U.S. at 27 99. This presumption may be overcome by a showing “there is reason to think some other 1 explanation for the state court’s decision is more likely.” Id. at 99–100 (citing Ylst v. 2 Nunnemaker, 501 U.S. 797, 803 (1991)). 3 Where the state courts reach a decision on the merits but there is no reasoned decision, a 4 federal habeas court independently reviews the record to determine whether habeas corpus relief 5 is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 6 (9th Cir. 2003). “Independent review of the record is not de novo review of the constitutional 7 issue, but rather, the only method by which we can determine whether a silent state court 8 decision is objectively unreasonable.” Himes, 336 F.3d at 853. While the federal court cannot 9 analyze just what the state court did when it issued a summary denial, the federal court must 10 review the state court record to determine whether there was any “reasonable basis for the state 11 court to deny relief.” Richter, 562 U.S. at 98. This Court “must determine what arguments or 12 theories . . . could have supported, the state court’s decision; and then it must ask whether it is 13 possible fairminded jurists could disagree that those arguments or theories are inconsistent with 14 the holding in a prior decision of [the Supreme] Court.” Id. at 102. 15 III. 16 REVIEW OF CLAIM 17 In his sole remaining claim, Petitioner asserts ineffective assistance of trial counsel for 18 failing to file a notice of appeal regarding the Senate Bill No. 620 hearing. (ECF No. 1 at 12.) 19 This claim was raised in a state habeas petition filed in the California Supreme Court, which 20 summarily denied the petition. (LD 22.) There is no reasoned state court decision on this claim, 21 and the Court presumes that the state court adjudicated the claim on the merits. See Johnson, 568 22 U.S. at 301. Accordingly, AEDPA’s deferential standard of review applies, and the Court “must 23 determine what arguments or theories . . . could have supported, the state court’s decision; and 24 then it must ask whether it is possible fairminded jurists could disagree that those arguments or 25 theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” Richter, 26 562 U.S. at 102. 27 /// 1 A. Strickland Legal Standard 2 The clearly established federal law governing ineffective assistance of counsel claims is 3 Strickland v. Washington, 466 U.S. 668 (1984). In a petition for writ of habeas corpus alleging 4 ineffective assistance of counsel, the court must consider two factors. Strickland, 466 U.S. at 5 687. First, the petitioner must show that counsel’s performance was deficient, requiring a 6 showing that counsel made errors so serious that he or she was not functioning as the “counsel” 7 guaranteed by the Sixth Amendment. Id. at 687. The petitioner must show that counsel’s 8 representation fell below an objective standard of reasonableness and must identify counsel’s 9 alleged acts or omissions that were not the result of reasonable professional judgment 10 considering the circumstances. Richter, 562 U.S. at 105 (“The question is whether an attorney’s 11 representation amounted to incompetence under ‘prevailing professional norms,’ not whether it 12 deviated from best practices or most common custom.”) (citing Strickland, 466 U.S. at 690). 13 Judicial scrutiny of counsel’s performance is highly deferential. A court indulges a strong 14 presumption that counsel’s conduct falls within the wide range of reasonable professional 15 assistance. Strickland, 466 U.S. at 687. A reviewing court should make every effort “to eliminate 16 the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged 17 conduct, and to evaluate the conduct from counsel’s perspective at that time.” Id. at 689. 18 Second, the petitioner must show that there is a reasonable probability that, but for 19 counsel’s unprofessional errors, the result would have been different. It is not enough “to show 20 that the errors had some conceivable effect on the outcome of the proceeding.” Strickland, 466 21 U.S. at 693. “A reasonable probability is a probability sufficient to undermine confidence in the 22 outcome.” Id. at 694. A court “asks whether it is ‘reasonable likely’ the result would have been 23 different. . . . The likelihood of a different result must be substantial, not just conceivable.” 24 Richter, 562 U.S. at 111–12 (citing Strickland, 466 U.S. at 696, 693). A reviewing court may 25 review the prejudice prong first. See Pizzuto v. Arave, 280 F.3d 949, 955 (9th Cir. 2002). 26 When § 2254(d) applies, “[t]he pivotal question is whether the state court’s application of 27 the Strickland standard was unreasonable. This is different from asking whether defense 1 because Strickland articulates “a general standard, a state court has even more latitude to 2 reasonably determine that a defendant has not satisfied that standard.” Knowles v. Mirzayance, 3 556 U.S. 111, 123 (2009) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). “The 4 standards created by Strickland and § 2254(d) are both ‘highly deferential,’ and when the two 5 apply in tandem, review is ‘doubly’ so.” Richter, 562 U.S. at 105 (citations omitted). Thus, “for 6 claims of ineffective assistance of counsel . . . AEDPA review must be ‘doubly deferential’ in 7 order to afford ‘both the state court and the defense attorney the benefit of the doubt.’” Woods v. 8 Donald, 575 U.S. 312, 316–17 (2015) (quoting Burt v. Titlow, 571 U.S. 12, 15 (2013)). When 9 this “doubly deferential” judicial review applies, the inquiry is “whether there is any reasonable 10 argument that counsel satisfied Strickland’s deferential standard.” Richter, 562 U.S. at 105. 11 B. Analysis 12 As “review under § 2254(d)(1) is limited to the record that was before the state court that 13 adjudicated the claim on the merits,” Pinholster, 563 U.S. at 181, this Court will look to the state 14 habeas petition presented to the California Supreme Court and any attachments thereto rather 15 than the petition filed in this Court. In the state habeas petition filed in the California Supreme 16 Court, Petitioner alleged:

17 At the SB620 – hearing Mr. Harris asked Ms. Singh about filling [sic] an appeal of the judge’s denial to strike the gun enhancement, Ms. Singh said she would 18 contact Mr. Warriner (appellate counsel) about it (Harris Declaration) yet she never did (see Exhibit – D, postit note attached to some correspondence from Mr. 19 Warriner to Mr. Harris). 20 (ECF No. 26-22 at 8–9.) In a sworn declaration attached to the state habeas petition, Petitioner 21 stated: “I asked Ms. Singh if she would appeal the denial, by the judge, of the SB620 striking of 22 the 25-year to life gun enhancement. Ms. Singh stated that she would contact my appeal counsel 23 about that issue.” (Id. at 25.) Petitioner also presented a Post-It note bearing prior appellate 24 counsel Warriner’s apparent signature that stated “Pam [Singh] didn’t contact me about 25 appealing the gun enhancement.” (ECF No. 26-21 at 29; ECF No. 26-22 at 47; ECF No. 27 at 26 25.) 27 Based on the allegations in the state habeas petition and Petitioner’s sworn declaration 1 counsel about filing an appeal of the judge’s denial to strike the gun enhancement at the SB 620 2 hearing, trial counsel said she would contact appellate counsel about the issue, there was a 3 notation from appellate counsel stating that trial counsel did not contact him about appealing the 4 gun enhancement, and no notice of appeal was filed. 5 Strickland “applies to claims . . . that counsel was constitutionally ineffective for failing 6 to file a notice of appeal,” and the Supreme Court has “long held that a lawyer who disregards 7 specific instructions from the defendant to file a notice of appeal acts in a manner that is 8 professionally unreasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (citing Rodriquez 9 v. United States, 395 U.S. 327 (1969); Peguero v. United States, 526 U.S. 23 (1999)). 10 In those cases where the defendant neither instructs counsel to file an appeal nor asks that an appeal not be taken, we believe the question whether counsel has 11 performed deficiently by not filing a notice of appeal is best answered by first asking a separate, but antecedent, question: whether counsel in fact consulted with 12 the defendant about an appeal. We employ the term “consult” to convey a specific meaning—advising the defendant about the advantages and disadvantages of 13 taking an appeal, and making a reasonable effort to discover the defendant’s wishes. If counsel has consulted with the defendant, the question of deficient 14 performance is easily answered: Counsel performs in a professionally unreasonable manner only by failing to follow the defendant’s express 15 instructions with respect to an appeal. If counsel has not consulted with the defendant, the court must in turn ask a second, and subsidiary, question: whether 16 counsel’s failure to consult with the defendant itself constitutes deficient performance. 17 18 Flores-Ortega, 528 U.S. at 478 (citation omitted). 19 [C]ounsel 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 20 want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he 21 was interested in appealing. In making this determination, courts must take into account all the information counsel knew or should have known. 22 23 Flores-Ortega, 528 U.S. at 480. 24 “[T]o show prejudice in these circumstances, a defendant must demonstrate that there is a 25 reasonable probability that, but for counsel’s deficient failure to consult with him about an 26 appeal, he would have timely appealed.” Flores-Ortega, 528 U.S. at 484. In other words, “when 27 counsel’s constitutionally deficient performance deprives a defendant of an appeal that he 1 counsel claim entitling him to an appeal,” Flores-Ortega, 528 U.S. at 484, and “prejudice to the 2 defendant should be presumed ‘with no further showing from the defendant of the merits of his 3 underlying claims,’” Garza v. Idaho, 139 S. Ct. 738, 742 (2019) (quoting Flores-Ortega, 528 4 U.S. at 484). 5 As there are no allegations regarding a failure to consult with Petitioner about an appeal, 6 in summarily denying Petitioner’s ineffective assistance of counsel claim for failure to file a 7 notice of appeal, the California Supreme Court could have concluded there was no 8 ineffectiveness only if it found that: (1) Petitioner did not expressly instruct counsel to file an 9 appeal after consultation; or (2) Petitioner did not establish prejudice resulting from counsel’s 10 deficient failure to file a notice of appeal. 11 1. Express Instructions to Appeal 12 The Court finds a determination that Petitioner did not expressly instruct counsel to file a 13 notice of appeal would be objectively unreasonable under 28 U.S.C. § 2254(d)(1).5 Petitioner’s 14 allegations in the state habeas petition and declaration—“Mr. Harris asked Ms. Singh about 15 filling [sic] an appeal of the judge’s denial to strike the gun enhancement” and “I asked Ms. 16 Singh if she would appeal the denial, by the judge, of the SB620 striking of the 25-year to life 17 gun enhancement”—initially may appear as reasonably demonstrating to counsel that Petitioner 18 was interested in appealing but falling short of establishing that Petitioner specifically or 19 expressly instructed counsel to file a notice of appeal. However, given that counsel’s response to 20 Petitioner’s statement was to say that she would contact Petitioner’s appellate counsel about an 21 appeal, it appears that trial counsel herself construed Petitioner’s statement as instructions to file 22 an appeal and her stated response was consistent with such instructions. Therefore, considering 23 the whole record (including counsel’s response) rather than a technical parsing of Petitioner’s 24 pro se allegations regarding Petitioner’s statement to trial counsel, the Court finds that, accepting 25

26 5 In the prior findings and recommendations, the Court found that a such a determination was an unreasonable determination of the facts under § 2254(d)(2). (ECF No. 35 at 33.) However, “summary denial [of a state habeas 27 petition] constitute[s] a determination by the state court ‘that the claims made in that petition [did] not state a prima facie case entitling [Petitioner] to relief’” and is “a legal determination, not a factual one.” Prescott v. Santoro, 53 1 all factual allegations as true,6 a denial of Petitioner’s ineffective assistance of counsel claim on 2 the basis that Petitioner did not expressly instruct counsel to file an appeal was “so lacking in 3 justification that there was an error well understood and comprehended in existing law beyond 4 any possibility for fairminded disagreement.” Richter, 562 U.S. at 103. 5 2. Prejudice 6 Petitioner cites to Roe v. Flores-Ortega, 528 U.S. 470 (2000), Garza v. Idaho, 139 S. Ct. 7 738 (2019), and Manning v. Foster, 224 F.3d 1129 (9th Cir. 2000), in support of his contention 8 that prejudice is presumed when an attorney fails to file an appeal against a petitioner’s express 9 wishes. (ECF No. 47 at 5–7.) In Flores-Ortega, the Supreme Court “decide[d] the proper 10 framework for evaluating an ineffective assistance of counsel claim, based on counsel’s failure to 11 file a notice of appeal without [a defendant]’s consent.” Flores-Ortega, 528 U.S. at 473. With 12 respect to the second part of the Strickland test, the Supreme Court rejected a per se prejudice 13 rule, which “ignores the critical requirement that counsel’s deficient performance must actually 14 cause the forfeiture of the defendant’s appeal.” Id. at 484. Instead, the Supreme Court held “that 15 when counsel’s constitutionally deficient performance deprives a defendant of an appeal that he 16 otherwise would have taken, the defendant has made out a successful ineffective assistance of 17 counsel claim entitling him to an appeal,” requiring “no further showing from the defendant of 18 the merits of his underlying claims.” Flores-Ortega, 528 U.S. at 484. In Garza, a defendant, who 19 had pleaded guilty and signed an appeal waiver, alleged ineffective assistance of counsel for 20 failure to file notices of appeal despite the defendant’s requests. 139 S. Ct. at 742–43. The 21 Supreme Court “reaffirm[ed] that, ‘when counsel’s constitutionally deficient performance 22 deprives a defendant of an appeal that he otherwise would have taken, the defendant has made 23 out a successful ineffective assistance of counsel claim entitling him to an appeal,’ with no need 24 for a ‘further showing’ of his claims’ merit, regardless of whether the defendant has signed an 25 appeal waiver.” Id. at 747 (quoting Flores-Ortega, 528 U.S. at 484). In Manning, a habeas 26 petitioner “alleg[ed] ineffective assistance of counsel because his defense attorney failed to file

27 6 Under California law, a court accepts all factual allegations as true in determining whether a state habeas petition states a prima facie claim. See Maas v. Superior Court, 1 Cal. 5th 962, 974 (2016); People v. Duvall, 9 Cal.4th 464, 1 an appeal from the conviction even after Manning specifically requested him to appeal.” 224 2 F.3d at 1131. The Ninth Circuit cited Flores-Ortega for the proposition that “[w]here an attorney 3 fails to file an appeal, and the petitioner can prove that he would have appealed ‘but for’ 4 counsel’s failure to file, prejudice is presumed.” Manning, 224 F.3d at 1135 (citing Flores- 5 Ortega, 120 S. Ct. at 1038). Because “Manning timely informed his attorney of his desire to 6 appeal in both a phone conversation and a letter” and counsel “acknowledged Manning’s timely 7 direction to appeal,” the Ninth Circuit held that “Manning has demonstrated that, but for his 8 attorney’s errors, he would have appealed his sentence” and “has therefore shown ‘prejudice’” to 9 excuse procedural default. Manning, 224 F.3d at 1135–36. 10 In the answer, Respondent argued that counsel’s deficiency did not cause Petitioner to 11 lose his appellate rights because “‘California provides an avenue of relief for a defendant whose 12 counsel has filed a late notice of appeal’ and has, ‘time and time again, declared that the loss of 13 appeal rights can easily be remedied where counsel has erred. . . . The defendant need only act in 14 a timely fashion. . . .’” (ECF No. 27 at 26 (quoting Canales v. Roe, 151 F.3d 1226, 1230 (9th Cir. 15 1998).) In response to Petitioner’s supplemental traverse, Respondent crafts an opinion the 16 California Supreme Court “might have written (if choosing to state reasons) when denying 17 relief,” (ECF No. 48 at 2), which states in pertinent part: 18 [I]n California, failure to file a timely notice of appeal does not ultimately result in loss of appellate rights, if counsel timely was told to file that notice. Rather, 19 under those circumstances a defendant still has his right to appeal; his right to appeal will be lost only if he fails to timely act after counsel’s failure by alerting 20 the courts that he instructed counsel to appeal.7

21 . . .

22 Thus, even had Petitioner prima facie shown that he timely told counsel to appeal, it would not follow that counsel’s omission “actually cause[d] the forfeiture of 23 [Petitioner’s] appeal.”8 Rather, under those circumstances Petitioner’s right to appeal persisted, and ultimately was lost only when he failed timely to allege that 24 re-sentencing counsel Singh did not follow his timely instruction. Because any deficiency did not actually cause Petitioner’s appeal rights to be lost, relief is 25 denied for lack of prejudice. 26 (ECF No. 48 at 2, 3 (footnotes in original).) 27 7 Canales v. Roe, 151 F.3d 1226, 1230 (9th Cir. 1998). 1 In Canales, trial counsel attempted to appeal Canales’s conviction but filed the notice of 2 appeal two days late, on May 17, 1993. On May 25, 1993, “the superior court sent Canales a 3 letter refusing to certify the case for appeal and directing him to seek relief from the California 4 Court of Appeal.” 151 F.3d at 1227–28. On October 19, 1993, after Canales had sent in a request 5 for trial transcripts, the superior court sent Canales a second letter, which “again notified him 6 that his notice of appeal was untimely and that he should seek relief from the California Court of 7 Appeal. It gave him the address of that court.” Id. at 1228. On November 3, 1994, Canales 8 attempted to file a late notice of appeal with the California Court of Appeal, which denied the 9 notice of appeal because Canales “had ‘failed to justify the 18–month delay in seeking leave to 10 file a belated notice of appeal.’” Id. In his federal petition for writ of habeas corpus, Canales 11 asserted a claim of ineffective assistance of counsel for his trial attorney’s late filing of a notice 12 of appeal. Id. The Ninth Circuit explained that “[t]his case does not involve a question about 13 what issues Canales could have raised on appeal. It involves the relationship between his 14 counsel’s failure to file the notice and the ultimate loss of his appeal rights.” Canales, 151 F.3d at 15 1230. The Ninth Circuit recognized that “California provides an avenue of relief for a defendant 16 whose counsel has filed a late notice of appeal” and “California provides a method for filing a 17 belated notice of appeal.” Id. at 1230, 1231. The Ninth Circuit found that Canales was not 18 entitled to habeas relief for ineffective assistance of counsel because “the state trial court notified 19 Canales of the untimeliness of his appeal and directed him toward a potential avenue of relief, 20 but he, as the state courts determined, failed to follow that direction. Ultimately, it cannot be said 21 that inadequate performance by counsel denied him the right to an appeal.” Id. at 1230. 22 The Court notes that Canales was decided before Flores-Ortega, and it is unclear to what 23 extent Canales was abrogated by Flores-Ortega. Additionally, Canales can be differentiated from 24 the instant matter because counsel actually filed a notice of appeal, albeit untimely, and “the state 25 trial court notified Canales of the untimeliness of his appeal and directed him toward a potential 26 avenue of relief.” Canales, 151 F.3d at 1230. Because Canales “failed to follow that direction,” 27 the Ninth Circuit found that “[u]ltimately, it cannot be said that inadequate performance by 1 AWI-SKO, 2015 WL 6689651, at *4 (E.D. Cal. Oct. 28, 2015) (“Like Canales, Petitioner 2 initially lost his right to appeal by his trial attorney’s ineffective assistance, but ultimately lost it 3 again through his own failure to act after the California Court of Appeals reopened a time period 4 in which he could file a notice of appeal. When a defendant fails to follow the path to relief 5 mapped out for him by the state court, ‘it cannot be said that inadequate performance by counsel 6 denied him the right to an appeal.’” (quoting Canales, 151 F.3d at 1230)). In contrast, here, 7 counsel failed to file a notice of appeal, and Petitioner was not directed toward a potential path of 8 relief by the state court. 9 The Ninth Circuit has interpreted Flores-Ortega as follows: 10 [T]he law is that “a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally 11 unreasonable.”9 . . . This proposition may amount to saying “it is ineffective assistance of counsel to refuse to file a notice of appeal when your client tells you 12 to, even if doing so would be contrary to the plea agreement and harmful to your client,” but that is the law on filing a notice of appeal. 13 This proposition of law controls both the deficient performance prong of 14 Strickland and the prejudice prong. If, as Sandoval-Lopez claims, it is true that he explicitly told his lawyer to appeal his case and his lawyer refused, then we are 15 required by Flores-Ortega to conclude that it was deficient performance not to appeal and that Sandoval-Lopez was prejudiced. The prejudice in failure to file a 16 notice of appeal cases is that the defendant lost his chance to file the appeal, not that he lost a favorable result that he would have obtained by appeal. 17 18 United States v. Sandoval-Lopez, 409 F.3d 1193, 1197 (9th Cir. 2005) (footnote in original). See 19 also Manning, 224 F.3d at 1131 (“Where an attorney fails to file an appeal, and the petitioner can 20 prove that he would have appealed ‘but for’ counsel’s failure to file, prejudice is presumed.” 21 (citing Flores–Ortega, 120 S. Ct. at 1038). Circuit caselaw is not governing law under AEDPA, 22 but “precedents may be pertinent to the extent that they illuminate the meaning and application 23 of Supreme Court precedents.” Campbell v. Rice, 408 F.3d 1166, 1170 (9th Cir. 2005) (en banc). 24 The Court finds Jones v. Henry, 460 F. App’x 717 (9th Cir. 2011), instructive. In Jones, a 25 California habeas petitioner’s “appellate counsel, failed to follow Jones’s direction to file an 26 appeal.” 460 F. App’x at 721. The Ninth Circuit explained that “[i]t is clearly established that the 27 1 failure to follow a client’s request to file a notice of appeal is per se ineffective” and “[w]here, as 2 here, that failure actually causes the forfeiture of defendant’s appeal, there is also per se 3 prejudice.” Id. (citing Flores-Ortega, 528 U.S. at 477). The Ninth Circuit observed that 4 the only possible theory that could have supported that decision is the one advanced by the State here: that Flores-Ortega does not apply because the 5 document that [counsel] failed to file was not a ‘notice of appeal’ but rather a statement of reasonable grounds for appeal required by California Penal Code 6 § 1237.5. 7 Jones, 460 F. App’x at 721 (9th Cir. 2011). The Ninth Circuit found that “[n]o fairminded jurist 8 would draw a distinction between a statement of reasonable grounds and a notice of appeal for 9 the purposes of determining whether ‘counsel perform[ed] in a professionally unreasonable 10 manner . . . by failing to follow the defendant’s express instructions with respect to an appeal’” 11 and affirmed the district court’s grant of habeas relief for ineffective assistance of counsel. Jones, 12 460 F. App’x at 721. 13 Similar to Jones, Petitioner instructed counsel to file an appeal and counsel failed to 14 follow Petitioner’s instruction. Jones also concerned a California habeas petitioner and 15 application of AEDPA’s deferential standard of review and was decided after Flores-Ortega. 16 Although the issue of California’s procedure for filing a belated notice of appeal was not before 17 the court in Jones, the Court finds that the instant matter is sufficiently comparable to Jones and 18 clearly distinguishable from Canales, such that the outcome in Jones should be followed. In 19 support of Canales’s determination that “California provides an avenue of relief for a defendant 20 whose counsel has filed a late notice of appeal” and “has, time and time again, declared that the 21 loss of appeal rights can easily be remedied where counsel has erred,” the Ninth Circuit cited to: 22 In re Benoit, 10 Cal.3d 72, 85–89, 109 Cal. Rptr. 785, 793–96, 514 P.2d 97, 105–08 (1973); 23 People v. Sanchez, 1 Cal.3d 496, 500–01, 82 Cal. Rptr. 634, 636–37, 462 P.2d 386, 388–89 24 (1969); and People v. Tucker, 61 Cal.2d 828, 831–32, 40 Cal. Rptr. 609, 611–12, 395 P.2d 449, 25 451–52 (1964). Canales, 151 F.3d at 1230. In Benoit, counsels filed notices of appeal ten and 26 forty-six days late. 10 Cal. 3d at 87, 89. Sanchez stated the general proposition that a “criminal 27 defendant seeking relief from his default in failing to file a timely notice of appeal is entitled to 1 attorney to file a notice of appeal . . . or if the attorney made a timely promise to file a notice of 2 appeal . . .” 1 Cal. 3d at 500. In Tucker, a notice of appeal also was untimely filed and “the 3 superior court clerk notified petitioner that his notice had been offered for filing late and that he 4 could petition the appellate court for relief from default.” 61 Cal. 3d at 829–30. As previously 5 noted, the instant matter is distinguishable from Canales, Benoit, and Tucker, because here, 6 counsel failed to file a notice of appeal (rather than filing an untimely notice of appeal) and 7 Petitioner was not directed toward a potential path of relief by the state court. 8 Additionally, there is no indication that Petitioner was aware of California’s avenue for 9 relief for filing a belated notice of appeal, and the Court agrees with Petitioner that holding a 10 state court can reasonably find a petitioner should shoulder the blame for the loss of appeal if a 11 state scheme exists allowing for a defendant to remedy his counsel’s error without any 12 requirement that the record reflect a knowing failure to act by the petitioner “improperly 13 broadens the causation analysis employed by the [Supreme] Court in Flores-Ortega,” (ECF No. 14 47 at 10), and the Ninth Circuit’s subsequent application of Flores-Ortega in Manning, which 15 held that “[w]here an attorney fails to file an appeal, and the petitioner can prove that he would 16 have appealed ‘but for’ counsel’s failure to file, prejudice is presumed.” 224 F.3d at 1131 (citing 17 Flores-Ortega, 120 S. Ct. at 1038). Here, there was no intervening event after counsel’s deficient 18 performance (e.g., Petitioner being notified or otherwise directed to seek relief in the California 19 Court of Appeal for a late appeal and/or Petitioner himself attempting to file an untimely notice 20 of appeal). For purposes of determining whether counsel’s deficient performance actually caused 21 the forfeiture of Petitioner’s appeal, no fairminded jurist would fail to draw a distinction between 22 a defendant whose counsel filed an untimely notice of appeal and who thereafter was informed 23 of California’s delayed appeal procedure and failed to pursue said procedure in a timely manner, 24 and a defendant whose counsel failed to file any notice of appeal and who was not aware of the 25 delayed appeal procedure. 26 Based on the foregoing, the Court finds that a denial of Petitioner’s ineffective assistance 27 claim on the basis that Petitioner did not show prejudice from counsel’s deficient performance 1 lacking in justification that there was an error well understood and comprehended in existing law 2 beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103. 3 C. Expansion of Record and Evidentiary Hearing 4 If we determine, considering only the evidence before the state court, that the adjudication of a claim on the merits resulted in a decision contrary to or 5 involving an unreasonable application of clearly established federal law, or that the state court’s decision was based on an unreasonable determination of the facts, 6 we evaluate the claim de novo, and we may consider evidence properly presented for the first time in federal court. 7 8 Hurles v. Ryan, 752 F.3d 768, 778 (9th Cir. 2014) 9 “AEDPA [28 U.S.C. § 2254(e)(2)] constrains when the district court may hold an 10 evidentiary hearing or expand the record pursuant to Rule 7 of the Rules Governing § 2254 cases 11 if a state prisoner seeking federal habeas relief has failed to develop the factual record that 12 supports a claim in state court.” Rhoades v. Henry, 598 F.3d 511, 517 (9th Cir. 2010) (citing 13 Holland v. Jackson, 542 U.S. 649, 652–53 (2004) (per curiam); Cooper-Smith v. Palmateer, 397 14 F.3d 1236, 1241 (9th Cir. 2005)). “[A] failure to develop the factual basis of a claim is not 15 established unless there is lack of diligence, or some greater fault, attributable to the prisoner or 16 the prisoner’s counsel.” Williams v. Taylor, 529 U.S. 420, 432 (2000). “Diligence for purposes 17 of the opening clause [of § 2254(e)(2)] depends upon whether the prisoner made a reasonable 18 attempt, in light of the information available at the time, to investigate and pursue claims in state 19 court[.]” Id. at 435. 20 Here, the record before the Court demonstrates that Petitioner exercised diligence to 21 develop the factual basis of his ineffective assistance of counsel claim for failure to file a notice 22 of appeal. Prior to filing his state habeas petitions, Petitioner wrote a letter to trial counsel 23 asking, inter alia, why she did not file a notice of appeal with respect to the SB 620 hearing. 24 (ECF No. 1 at 33–35.) Petitioner also obtained and presented to the state courts a copy of a Post- 25 It note bearing prior appellate counsel Warriner’s apparent signature that stated that trial counsel 26 “Pam [Singh] didn’t contact me about appealing the gun enhancement.” (ECF No. 26-21 at 29; 27 ECF No. 26-22 at 47.) Additionally, the state courts denied Petitioner’s state habeas petitions 1 habeas] proceedings at which an evidentiary hearing should be requested, he has not shown ‘a 2 lack of diligence at the relevant stages of the state court proceedings’ and therefore is not subject 3 to AEDPA’s restrictions on evidentiary hearings.” Horton v. Mayle, 408 F.3d 570, 582 n.6 (9th 4 Cir. 2005). As the record before the Court demonstrates that Petitioner did not fail to develop the 5 factual basis for his ineffective assistance of counsel claim for failure to file a notice of appeal, 6 the Court may expand the record pursuant to Rule 7 of the Rules Governing § 2254 cases.10 7 In addition, where, as here, the “petitioner has not failed to develop the factual basis of 8 his claim as required by 28 U.S.C. § 2254(e)(2), an evidentiary hearing is required if (1) the 9 petitioner has shown his entitlement to an evidentiary hearing pursuant to Townsend v. Sain . . . 10 and (2) the allegations, if true, would entitle him to relief.” Hurles, 752 F.3d at 791 (citing 11 Stanley v. Schriro, 598 F.3d 612, 624 (9th Cir. 2010)). Townsend held that a federal court must 12 grant an evidentiary hearing if: 13 (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the 14 fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered 15 evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford 16 the habeas applicant a full and fair fact hearing. 17 Townsend v. Sain, 372 U.S. 293, 313 (1963), overruled on other grounds by Keeney v. Tamayo- 18 Reyes, 504 U.S. 1 (1992). 19 Petitioner was not afforded an evidentiary hearing in state court. As set forth in section 20 III(B), supra, determinations that Petitioner did not expressly instruct counsel to file a notice of 21 appeal and Petitioner did not show prejudice from counsel’s deficient performance were contrary 22 to, or an unreasonable application of, clearly established federal law. Petitioner’s allegations, if 23 true, would entitle him to relief. Accordingly, an evidentiary hearing on Petitioner’s ineffective 24 assistance of counsel claim for failure to file a notice of appeal is warranted. 25 ///

26 10 The Court “may direct the parties to expand the record by submitting additional materials relating to the petition,” such as “letters predating the filing of the petition, documents, exhibits, and answers under oath to written 27 interrogatories propounded by the judge,” and affidavits. Rule 7(a)–(b), Rules Governing Section 2254 Cases in the United States District Courts (“Habeas Rules”), 28 U.S.C foll. § 2254. “[T]he party against whom the additional 1 IV. 2 RECOMMENDATION 3 Based on the foregoing, the Court HEREBY RECOMMENDS that the record be 4 | expanded and, if necessary, an evidentiary hearing be held on Petitioner’s ineffective assistance 5 | of counsel claim for failure to file a notice of appeal. 6 This Findings and Recommendation is submitted to the assigned United States District 7 | Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 8 | Rules of Practice for the United States District Court, Eastern District of California. Within 9 | fourteen (14) days after service of the Findings and Recommendation, any party may file 10 | written objections with the court and serve a copy on all parties. Such a document should be 11 | captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the 12 | objections shall be served and filed within fourteen (14) days after service of the objections. The 13 | assigned District Judge will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. 14 | § 636(b)(1)(C). The parties are advised that failure to file objections within the specified time 15 | may waive the right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 834, 16 | 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 17 18 IT IS SO ORDERED. DAM Le 19 | Dated: _ September 7, 2023 _ ef UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28