Court: Court of Appeals for the Ninth Circuit; January 12, 2009; Federal Appellate Court
An appeal was filed by Clifford Phillip Buchanan challenging the denial of his habeas corpus petition under 28 U.S.C. § 2254 while in state custody. Buchanan claims the district court incorrectly determined that some of his claims were unexhausted, misled him regarding the court's discretion to stay proceedings during the exhaustion of those claims, and failed to grant him an evidentiary hearing before dismissing his exhausted ineffective assistance of counsel claims on the merits.
The court affirmed in part and reversed in part. It found that Buchanan abandoned his right to pursue claims deemed unexhausted after the district court provided him with options: to abandon the unexhausted claims or have the petition dismissed without prejudice. By choosing to abandon these claims, Buchanan relinquished any right to raise them in federal court, making moot his argument about the trial counsel's failure to file an appeal.
Buchanan also contended that the district court misled him about its authority to stay the federal proceedings. Although the district court refused to stay the petition, it allowed for the dismissal of claims while withholding judgment, enabling Buchanan to return with an amended petition concerning newly exhausted claims without violating the statute of limitations. The court deemed any misstep in refusing a stay harmless.
Lastly, Buchanan argued that the district court erred in not granting an evidentiary hearing regarding his exhausted ineffective assistance of counsel claim, which focused on his trial counsel's failure to discuss an appeal. The court cited Strickland v. Washington as the governing legal standard for ineffective assistance claims, which requires a demonstration of both substandard representation and resulting prejudice. Buchanan asserted that the trial court unreasonably applied Strickland, and the denial of an evidentiary hearing was reviewed for abuse of discretion.
A district court generally denies requests for evidentiary hearings if the petitioner did not develop the factual basis for their claim in state court, as outlined in 28 U.S.C. 2254(e)(2). The Supreme Court defines "failed to develop" as a lack of diligence or fault on the part of the prisoner or their counsel. If a petitioner properly sought an evidentiary hearing in state court but was denied, they are not at fault. In this case, the state court deemed a hearing unnecessary, which means Buchanan is not barred from obtaining a federal evidentiary hearing if warranted. To justify such a hearing, a petitioner must present a colorable claim for relief and demonstrate specific facts that establish a right to relief. A verified petition can be treated as an affidavit, and if a petitioner’s allegations can be resolved by the state court record, an evidentiary hearing is not required. Buchanan must allege facts proving that: (1) his trial counsel had a duty to consult him about an appeal, (2) that duty was breached, and (3) he suffered prejudice from that breach. Counsel has a constitutional obligation to consult with a defendant about an appeal if there are nonfrivolous grounds for appeal or if the defendant indicated an interest in appealing. Buchanan claims he expressed an interest in appealing, which obligates counsel to consult. Factors such as whether he received the bargained sentence and the nature of his plea must be considered. Buchanan asserts he did not waive his right to appeal and expressed dissatisfaction with his sentence to his counsel, suggesting his plea does not negate his interest in appealing. Consequently, these claims, if supported by evidence, indicate that his counsel had a duty to discuss appellate options with him.
B. Buchanan has asserted that his trial counsel failed to consult him regarding his appeal rights, which constitutes a breach of duty. The trial court's instructions about his appeal rights were inadequate, as they did not clarify his right to appeal the sentence. During the plea hearing, Buchanan was informed only about appealing his conviction, not his sentence, and the sentencing transcript confirms this omission. Buchanan claims that his counsel only indicated that nothing could be done post-sentencing, without discussing the appeal process. Although a letter from his attorney to his mother suggests some communication about appeal timelines, it remains unclear whether Buchanan understood his right to appeal or if his attorney mistakenly believed he had waived that right or saw no viable issues for appeal. An evidentiary hearing is suggested to clarify these matters.
The government contends that Buchanan has not demonstrated prejudice by failing to identify non-frivolous issues for appeal. However, it is established that a defendant claiming ineffective assistance due to lack of appeal consultation does not need to specify potential appeal issues but must show a reasonable probability that he would have appealed if properly consulted. Several factors support the likelihood that Buchanan would have pursued an appeal: his expressed dissatisfaction with his lengthy sentence, the substantial nature of the sentence itself, his persistent pursuit of post-conviction relief, and evidence suggesting he may have instructed his counsel to file an appeal. Overall, Buchanan has presented sufficient facts indicating that, had counsel fulfilled the duty to consult, he would have likely appealed his sentence.
Buchanan's request for an evidentiary hearing was denied by the district court on the grounds that he failed to identify evidence or witnesses to support his petition. However, potential witnesses include his trial counsel, mother, and himself. The court found that Buchanan presented sufficient facts to claim ineffective assistance of counsel, specifically regarding his trial counsel's failure to consult him about his appellate rights. The decision affirms in part and reverses and remands in part, instructing that an evidentiary hearing be conducted on Buchanan's claims. Each party is responsible for their own costs. The ruling notes that Buchanan cannot argue that his attorney breached the duty to consult him about an appeal due to previous abandonment of that argument. Additionally, it is mentioned that a letter sent to his mother indicated that if Buchanan wished to appeal, he should seek another attorney, which may have misled him about his appeal rights. The letter was dated November 29, leaving only eight days to file an appeal, and it is unclear when Buchanan received it, which may have affected his ability to secure a substitute attorney on time, considering his indigent status and incarceration.
