Go to:	Case Menu	Briefs Menu

B. Deficient Performance.

In Strickland, this Court warned that "[j]udicial scrutiny of counsel's performance must be highly deferential." Strickland, supra, 466 U. S., at 689. The Ninth Circuit's approach does not give trial counsel's performance the deference it should be afforded under Strickland. Rather, it assumes incompetence. The Ninth Circuit's focus is on the defaulted appeal rights. With this focus, it assumes counsel was deficient. Nix v. Whiteside, 475 U. S. 157, 165 (1986) (quoting Strickland, 466 U. S., at 689), explained that in order "[t]o counteract the natural tendency to fault an unsuccessful defense, a court reviewing a claim of ineffective assistance must 'indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' " The Ninth Circuit should have indulged in this same strong presumption.

Analysis under California's standards reveals the reasonableness of counsel's actions in the present case. Penal Code section 1240.1(b) requires that trial counsel

"execute and file on his or her client's behalf a timely notice of appeal when the attorney is of the opinion that arguably meritorious grounds exist for a reversal or modification of the judgment or orders to be appealed from, and where, in the attorney's judgment, it is in the defendant's interest to pursue any relief that may be available to him or her on appeal; or when directed to do so by a defendant having a right to appeal."

This rule incorporates many of the principles directing this Court's Sixth Amendment jurisprudence. Because Strickland recognized that "[c]ounsel's function is to assist the defendant" and that "counsel owes the client a duty of loyalty . . . ," 466 U. S., at 688, Penal Code section 1240.1(b) has statutorily mandated as much with its requirement that trial counsel pursue an appeal when it is in the defendant's interest. In United States v. Cronic, 466 U. S. 648, 656, n. 19 (1984), the Court explained that "[t]he Sixth Amendment does not require that counsel do what is impossible or unethical." (Citation omitted). Recognizing that counsel has an ethical duty to keep frivolous appeals out of the courts, see, e.g., ABA Model Rules of Professional Conduct, Rule 3.1 (1992); ABA Model Code of Professional Responsibility, DR 7-102(A)(2), EC 7-4 (1983); Anders v. California, 386 U. S. 738, 744 (1967), the Penal Code only made filing a notice of appeal required if there were "arguably meritorious grounds."

Trial counsel was not ineffective in the present case. The defendant did not request an appeal. If he had, the District Court Magistrate believed, trial counsel would have filed a notice of appeal. See Evid. Hrg. Tr. 76; see also F & R 10-11. Therefore, counsel was under no duty to file an appeal unless there were "arguably meritorious grounds" for an appeal. At the District Court evidentiary hearing, trial counsel testified that she would not have encouraged Mr. Ortega to appeal, that the only grounds for appealing would be that the judge abused his discretion in denying probation, and that the claim "would almost certainly fail." Evid. Hrg. Tr. 44. The Magistrate's Findings and Recommendations further suggested that trial counsel, under California law, had no duty to file an appeal. F & R 11. The Ninth Circuit ignored California's standards and instead placed an additional duty on counsel to obtain consent before choosing not to file an appeal.

C. Prejudice.

Case-by-case inquiry into prejudice is well worth the cost when a notice of appeal is not filed by trial counsel. Section 1240.1(b) of the California Penal Code requires trial counsel to file a notice of appeal when there are "arguably meritorious" grounds for appeal. This requirement, in turn, forces a review by trial counsel of the case. Trial counsel, who is closest to the case and the defendant's cause, is in the best place to uncover any appealable issues. If trial counsel decides not to file a notice of appeal, it is unlikely that the loss of appeal resulted in prejudice that so undermined the reliability of the proceeding. Cases in this category with actual prejudice will be the rare exception, rather than the rule, the exact opposite of the category identified by Strickland as appropriate for a rule of presumed prejudice.

In addition, it is nearly impossible for the government to identify and prevent Sixth Amendment violations occurring within the attorney-client relationship. To uncover whether a defendant wants to appeal would require inquiry into privileged conversations, and prevention would require taking on defense counsel's role and would, most definitely, "interfere with the constitutionally protected independence of counsel . . . ." Strickland, supra, 466 U. S., at 689.

Finally, when counsel decides not to file a notice of appeal there is typically no conflict of interest that would justify a presumption of prejudice. A conflict of interest occurs when counsel "breaches the duty of loyalty," id., at 692, and occurs in the multiple representation setting. See Cuyler v. Sullivan, 446 U. S. 335, 348-350 (1980) (analyzing a series of conflict of interest cases all involving multiple representation). This is not a multiple representation case. Therefore, counsel did not represent interests contrary to Ortega's. Counsel's failure to file a frivolous, unrequested appeal did not breach the duty of loyalty.

In Cronic v. United States, 466 U. S. 648, 659, n. 26 (1984), the Court explained that, apart from circumstances the "magnitude" of which require a presumption of prejudice, "there is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt." Because in the present situation none of the presumption of prejudice categories is applicable, the defendant needs to demonstrate that counsel's failure to file a notice of appeal prejudiced him. The standard for prejudice requires the defendant to establish that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, supra, 466 U. S., at 694. This standard, in the present case, does not require the defendant to make his appeal on habeas review. In Strickler v. Greene, 527 U. S. __ (No. 98-5864, June 17, 1999) (slip op., at 27), for purposes of Brady materiality analysis,⁽⁵⁾ the Court recently reiterated that the " 'question is not whether the defendant would more likely than not have received a different verdict . . . , but whether . . . he received a fair trial, understood as a trial resulting in a verdict of worthy of confidence.' " (Quoting Kyles v. Whitley, 514 U. S. 419, 434 (1995)). If there are substantial grounds for an appeal, it is reasonably probable that the outcome would be different if a full appeal were permitted. This is enough to establish prejudice. The defendant does not have to show that he would have succeeded on appeal. The possible success of an appeal is enough to "undermine confidence in the outcome." Strickland, supra, 466 U. S., at 694. No such showing was made in this case.

III. Imposition of a duty to file unrequested,
meritless appeals would be a "new rule" contrary
to Teague v. Lane.

This Court granted review limited to the second question presented by petitioner. The question asks "whether trial counsel has a Sixth Amendment duty to file a notice of appeal following a guilty plea in the absence of such a request by the defendant, particularly where the defendant has been advised of his appeal rights." The Court denied certiorari on Question 1, which asked a specific question regarding the application of Teague v. Lane, 489 U. S. 288 (1989). That question was, "1. Whether it is United States Supreme Court precedent, as opposed to federal circuit court precedent, which determines if a rule is 'dictated by precedent' within the meaning of Teague v. Lane, 489 U. S. 288 (1989)."

Amicus takes the denial of certiorari on Question 1 to mean that the Court will not consider an argument that circuit precedent is irrelevant to the Teague analysis and that only Supreme Court precedent may be considered. Cf. 28 U. S. C. §2254(d)(1). We make no such ambitious argument here, but only follow the path well marked by this Court's precedents. Notwithstanding the limited grant of certiorari, because this case involves a federal habeas corpus request for relief based on what the government has argued is a new rule, the general Teague question, as opposed to the highly specific issue posed in Question 1, is fairly included in the "merits" question.⁽⁶⁾

As this Court explained in Caspari v. Bohlen, 510 U. S. 383, 389 (1994), "[a] threshold question in every habeas case . . . is whether the court is obligated to apply the Teague rule to the defendant's claim." The federal District Court concluded that the petitioner is not entitled to relief, because he seeks the benefit of a new rule announced by the Ninth Circuit. The decision in this case imposes an obligation on the State of California to hear and decide appeals in cases where counsel does not believe there are grounds to appeal and defendant has neither expressly requested nor expressly waived the appeal. This obligation is "new" "if the result was not dictated by precedent existing at the time the defendant's conviction became final." Teague, supra, 489 U. S., at 301 (emphasis in original).

To determine whether Teague's nonretroactivity principle should bar relief for a state prisoner, there are three steps that should be followed. See Caspari, supra, 510 U. S., at 390.

"First, the court must ascertain the date on which the defendant's conviction and sentence became final for Teague purposes. Second, the court must '[s]urve[y] the legal landscape as it then existed,' [citation], and 'determine whether a state court considering [the defendant's] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [he] seeks was required by the Constitution,'[citation]. Finally, even if the court determines that the defendant seeks the benefit of a new rule, the court must decide whether that rule falls within one of the two narrow exceptions to the nonretroactivity principle." Ibid.

Respondent's conviction, for purposes of nonretroactivity analysis, became "final" on January 9, 1994. Pet. for Cert. 3, n. 3.

A proper survey of legal landscape includes the opinions of this Court, and, if no definitive answer lies there, of all the federal circuits, and of the state courts. See Caspari, supra, 510 U. S., at 393-395. Precedent of a single federal circuit cannot be sufficient, because the question is "whether a state court . . . would have felt compelled by existing precedent," id., at 390 (emphasis added), and precedent of the lower federal courts is not binding on state courts. See Arizonans for Official English v. Arizona, 520 U. S. 43, 58-59, n. 11 (1997); id., at 66, n. 21. Unanimity of the lower courts, or something close to it, may indicate a rule is dictated by existing precedent. Conversely, a substantial split of authority demonstrates that " 'reasonable jurists [could] disagree.' " Caspari, 510 U. S., at 395. The authorities cited by the Attorney General, see Pet. for Cert. 18-22; Brief for Petitioner, part I, are more than sufficient to establish that, taking the legal landscape as a whole, the result Ortega seeks is not dictated by precedent. For the Ninth Circuit to decide to the contrary based on its own precedent alone, ignoring the rest of the "landscape," was clear error under Caspari.

CONCLUSION

The decision of the Court of Appeals for the Ninth Circuit should be reversed.

June, 1999

Respectfully submitted,

Kent S. Scheidegger*
Christine M. Murphy

*Attorney of Record

	Beginning of this file	Case Menu	Briefs Menu

Footnote 5. See supra, at 6, establishing that Brady materiality analysis is the same as Strickland prejudice.

Footnote 6. In some cases, this Court has decided retroactivity questions raised only by amicus and not briefed or argued by the party supported at all. See, e.g., Stovall v. Denno, 388 U. S. 293, 294, n. 1 (1967).  
 
August 1999