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INTEREST OF AMICUS CURIAE

The decision of the Ninth Circuit, if upheld, would require the routine reinstatement of appeals in cases where trial counsel correctly and properly determined there were no grounds for appeal. This would impose a pointless burden on state appellate courts, diverting resources from the more important task of deciding genuine issues. This would be contrary to the interests CJLF was formed to protect.

SUMMARY OF FACTS AND CASE

Rule 31(a) of the California Rules of Court requires the defendant to file a notice of appeal within 60 days of sentencing. A notice of appeal was not filed within this time limit. Instead, on March 24, 1994, defendant attempted to file a late notice of appeal. Ortega, supra, 160 F. 3d, at 535. The notice was rejected as untimely. Ibid. He then sought state habeas relief claiming that his "trial counsel was ineffective for failing to file a timely notice of appeal." Ibid. Relief was denied by the California Court of Appeals on August 12, 1994. Pet. for Cert. 3.

With his state court remedies exhausted, Ortega then turned to the federal system for relief. Ortega, supra, 160 F. 3d, at 535. In his federal habeas petition, he again asserted that his trial counsel was ineffective. Pet. for Cert. 4. An evidentiary hearing was held on January 24, 1997, "on the limited issue of the credibility of petitioner's assertions that his state trial counsel promised to file a notice of appeal on his behalf." Ortega, 160 F. 3d, at 535; see also Evidentiary Hearing Transcripts (cited below as "Evid. Hrg. Tr.") 2. During the hearing, the Magistrate commented about Ms. Kops, stating that "she is obviously an extremely experienced defense counsel. She's obviously a very meticulous person." Evid. Hrg. Tr. 75-76. The Magistrate further stated that he believed Ms. Kops would have filed a notice of appeal if the defendant requested it. Id., at 76; see also F & R 10-11.

After the hearing, the Magistrate made a number of findings. See Evid. Hrg. Tr. 75-76. As for the specific question, the Magistrate concluded that the respondent had failed to prove "that his counsel had promised to file a notice of appeal." Id., at 76; F & R 3. The Magistrate also concluded that Ortega had not consented to his trial counsel's failure to file a notice of appeal. F & R 5.

The Magistrate then concluded that the Ninth Circuit's opinion in United States v. Stearns, 68 F. 3d 328 (CA9 1995) was "a 'new rule' which could not be applied retroactively under Teague v. Lane." Ortega, supra, 160 F. 3d, at 535. Because Stearns was a "new rule," the Magistrate concluded respondent was not entitled to relief. Ibid. The District Court adopted the Magistrate's Findings and Recommendations. Ibid.

The Ninth Circuit Court of Appeals reversed. Ibid. The court concluded that Stearns was simply an application of its opinion in Lozada v. Deeds, 964 F. 2d 956 (CA9 1992) and therefore, not a "new rule" that would be barred by Teague. Ortega, supra, 160 F. 3d, at 536.

This Court granted certiorari on May 3, 1999, limited to the question as stated supra, at page i.

SUMMARY OF ARGUMENT

This case is a simple challenge to the effectiveness of trial counsel and should be analyzed as such. There is no denial of the right to counsel on appeal when there never was an appeal at all. Trial counsel did not fulfill the state's procedural requirements for an appeal, and, under the principles of Coleman v. Thompson, this omission should be judged like any other.

The Ninth Circuit, by distorting the test of Strickland v. Washington, has placed a new Sixth Amendment duty on trial counsel. Current Supreme Court authority does not require this distortion. It simply recognizes that a proper standard for state habeas cases is being debated within the circuits and establishes a procedural rule for federal defendant cases. The Court has developed in Strickland a workable test that effectively balances the competing interests involved in ineffective assistance claims. This test should be applied. Application of the test demonstrates that trial counsel's decision not to file a notice of appeal is not always ineffective and therefore, a presumption of prejudice is not warranted.

In Caspari v. Bohlen, this Court explained that Teague is a threshold question in every habeas corpus case. The Ninth Circuit relied on its own opinion in Lozada v. Deeds to establish the legal landscape at the time Ortega's conviction became final. A proper survey reveals that the imposition of a duty to file unrequested, meritless appeals remains debatable, and thus would be a "new rule" contrary to Teague v. Lane.

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Footnote 1. Rule 37.6 Statement: This brief was written entirely by counsel for amicus, as listed on the cover, and not by counsel for any party. No outside contributions were made to the preparation or submission of this brief.

Both parties have given written consent to the filing of this brief.

Footnote 2. This document is in the Joint Appendix. However, amicus cannot cite to the pages of Joint Appendix as it was not yet complete by our printing deadline.  
 
August 1999