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Ninth Circuit:
Defendant Who Inquired About Appeal Did Not ‘Instruct’ Lawyer
Decision, Affirming Denial of Habeas Relief, Draws Dissent
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals has affirmed the denial by the District Court of a petition for a writ of habeas corpus filed by a California prisoner, convicted of second-degree murder, who contends he received inadequate assistance of counsel because his trial lawyer failed to file a notice of appeal from an order denying a motion to strike a gun enhancement.
Friday’s memorandum opinion drew a dissent.
A trial court’s power to strike such an enhancement—entailing a 25-year-to-life term added to the sentence where grievous bodily harm occurs—was created by SB 620, signed into law on Oct. 11, 2017, and effective Jan., 1, 2018.
Petitioning for a writ was Gerald Brent Harris, who was convicted on Sept. 4, 2014 in Kern Superior Court and sentenced to 15 years to life in prison for his crime, plus the prescribed term based on the enhancement. The conviction was affirmed in a 2018 unpublished opinion of the Fifth District Court of Appeal, but a remand was ordered for the purpose of the trial court determining whether the enhancement should be stricken under the intervening statute.
“While we do not discount the seriousness of what happened or of defendant’s convictions, we cannot say from this record the trial court would not exercise its discretion to strike the firearm enhancement,” Justice Rosendo Peña Jr. wrote.
A hearing was held and the original sentence was reimposed.
Conversation With Lawyer
Harris inquired of his West Los Angeles attorney, Pam D Singh, about an appeal. No appeal was filed.
The defendant recounted in a declaration, in connection with a petition to the California Supreme Court for a writ of habeas corpus:
“I asked Ms. Singh if she would appeal the denial, by the judge, of the SB620 striking of the 25-year to life gun enhancement. Ms. Singh stated that she would contact my appeal counsel about that issue.”
He produced a Post-It note purportedly signed by his appellate lawyer, Timothy E. Warriner of Sacramento, who had handled the appeal in the Fifth District, saying that “Pam didn’t contact me about appealing the gun enhancement.”
His petition was summarily denied by the state high court on June 13, 2018.
District Court Decision
The District Court for the Eastern District of California on Jan, 26, 2024, likewise denied habeas relief. Judge Jennifer L. Thurston wrote:
“[T]he alleged statements could be interpreted as inquiries about the wisdom of filing an appeal or the availability of appellate options, rather than as express instructions to file an appeal. Therefore, the California Supreme Court reasonably could have found no express instruction to appeal was given.”
Rejecting the contention that Singh had been instructed to file a notice of appeal but responded that she first needed to talk with Warriner, Thurston said:
“[I]t is truly implausible that Singh was signaling that she needed to consult because she perceived (l) Petitioner had just instructed her to appeal, and (2) she needed to consult someone in order to respond to that instruction. The presumption of reasonable performance is strong…, not weak. We presume counsel does the smart thing, and not the dumb one….And it would be dumb for an attorney, perceiving a defendant’s express instruction to commence an appeal, to think (and thus say) the appropriate step was to consult with another attorney. There would be nothing to consult about.”
Ninth Circuit Opinion
The Ninth Circuit affirmed on Friday in a memorandum opinion signed by Judges Salvador Mendoza Jr. and Holly A. Thomas. They wrote:
“The state supreme court’s determination that Harris did not expressly instruct his trial counsel to file a notice of appeal was not objectively unreasonable….Harris’ question to his attorney—whether she ‘would’ appeal—is susceptible of more than one understanding, including that the question fell short of a specific instruction to appeal. And any argument that Harris’ trial counsel acted in an unprofessional manner by failing to follow up with appellate counsel and with him, was not exhausted in state court proceedings.”
District Court Judge Susan R. Bolton of the District of Arizona, sitting by designation, dissented, explaining:
“I am troubled by this case because of the words that Harris used. Harris’ statement in his sworn declaration wherein ‘[he] asked Ms. Singh if she would appeal,’ taken as true, constitutes ‘express instructions’ to file an appeal….Prejudice is presumed when an attorney fails to file an appeal against a petitioner’s express wishes….If Harris’ allegations that his counsel failed to carry out his instruction to file a notice of appeal are true, he would be entitled to relief….I would therefore reverse and remand for an evidentiary hearing.”
The case is Harris v. Frauenheim, 24-642.
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