Roscoe R. Riser v. Walter E. Craven, Warden, Folsom Prison
1974 U.S. App. LEXIS 7614 · 501 F.2d 381
July 17, 1974 · Docket 73-2567
Headnotes
Generated summaries- Headnote 1
The court explained that counsel’s obligation to protect a defendant’s right of appeal arises from the Gairson decision, which requires either filing the appeal or advising an indigent client of the procedure when the lawyer knows the client wants to appeal.
- Headnote 2
The opinion applies the Gairson and Sanders standards and cites Rodriguez, holding that a foregone appeal attributable to counsel’s omission is sufficient to state a prima facie case for habeas relief without any showing of what the missed appeal would have achieved.
- Headnote 3
A petitioner need not identify the specific errors that would have been raised on a missed appeal to establish a prima facie habeas claim based on ineffective assistance of counsel.
The court follows Rodriguez, which held that a defendant deprived of his right to appeal by counsel’s failure does not have to specify the alleged appellate points or prove prejudice in order to obtain post‑conviction relief.
- Headnote 4
The opinion notes that Buster’s requirement is contrary to controlling authority and therefore overrules its dictum, ensuring that a foregone appeal need not be shown to involve a valid issue.
- Headnote 5
The court relied on Gairson v. Cupp, holding that counsel’s failure to protect a client’s right of appeal deprives the defendant of effective assistance.
- Headnote 6
The opinion notes that such failure, as described in Gairson and reaffirmed in Sanders, is sufficient to support a habeas‑corpus petition.
- Headnote 7
A petitioner need not identify the errors that would have been raised on a missed appeal or show that the appeal would have been successful; the procedural failure alone is enough for a prima facie case of ineffective assistance.
Rodriguez v. United States held that the merits of the foregone appeal are irrelevant to establishing a claim for post‑conviction relief.
- Headnote 8
The opinion states that Buster’s reference to Rodriguez is dicta and is overruled to avoid intracircuit conflict.
- Headnote 9
Sanders v. Craven reaffirmed that the duty identified in Gairson controls for every state conviction examined in federal habeas proceedings.
- Headnote 10
The duty arises from the Gairson rule and was reaffirmed in Sanders, extending the right of appeal to state‑court convictions in federal habeas review.
- Headnote 11
The Supreme Court in Rodriguez held that a defendant need not identify the errors that would have been raised on a missed appeal; the procedural failure alone establishes a prima facie case.
- Headnote 12
A petitioner is not required to demonstrate the specific errors or the likelihood of success on the appeal that was never taken to obtain habeas relief.
Rodriguez makes clear that the existence of the procedural defect alone satisfies the prima facie requirement for post‑conviction relief.
- Headnote 13
The court expressly rejects the Buster requirement, stating that its dicta conflict with established Ninth Circuit precedent.
- Headnote 14
The court remanded the case for such a hearing, following the procedure adopted in Gairson and Sanders.
- Headnote 15
The Ninth Circuit reaffirmed the rule in Sanders and applied it in granting habeas relief to state prisoners.
Opinion
OPINION
Riser appeals from an order denying, without an evidentiary hearing, his ha-beas corpus petition seeking relief from his state court conviction for first degree murder. Riser’s habeas petition presented multiple challenges to his conviction, including his claim that his trial counsel’s failure to file an appeal for him or to tell him how to file an appeal on his own behalf deprived him of the effective assistance of counsel.
In Gairson v. Cupp (9th Cir. 1969) 415 F.2d 352, we held that counsel for a defendant convicted of a crime in a state court has an affirmative duty to protect his client’s right of appeal by filing a notice of appeal for his client or by telling him how he can proceed on his own behalf. The failure to perform the obligation deprives a defendant of effective assistance of trial counsel when the lawyer knows that his indigent client may want to appeal and that his client does not know how to do so. The Gairson rule was reaffirmed in Sanders v. Craven (9th Cir. 1973) 488 F.2d 478.
In Rodriquez v. United States (1969) 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340, the Supreme Court held in part that a defendant who was deprived of his right to appeal by the failure of trial counsel to file a notice of appeal was not required to specify the errors that he would have raised had an appeal been taken or to demonstrate that the denial of appeal was prejudicial in order to state a prima facie case warranting post-conviction relief. We applied this rule in Gairson and Sanders in granting federal habeas relief to state prisoners.
Riser’s petition stated a prima facie case for relief under Rodriquez, Gairson, and Sanders. His appeal could be decided by a simple remand citing those cases but for Buster v. Hocker (9th Cir. 1970) 428 F.2d 820, a brief per curiam opinion decided after Gairson and before Sanders stating:
“In our view, Rodriquez v. United States [citation omitted] is not necessarily applicable on federal habeas corpus review of state convictions.
“Although counsel neglected to complete the state appeal, before we should interfere there should be a showing that there was a valid point that was lost by not taking the state appeal. The point that was lost here for Buster was a contention that he was interrogated in violation of Miranda v. Arizona [citation omitted],
“We agree with the district court that the record before it shows that Buster’s interrogation at the time was not custodial. Here examination of the state record was enough without an evidentiary hearing.”
Unlike Rodriquez, Gairson, and Sanders, Buster stated the point that he would have raised on appeal and both the district court and our court decided that issue on the merits. Buster’s reference to Rodriquez, therefore, is dictum, but it is dictum that is contrary to the holdings of Gairson and Sanders. To avoid any appearance of intracircuit conflict on the issue, we now expressly overrule the Buster dictum.
Following the procedure we adopted in Gairson and Sanders, we do not reach the merits of any points that Riser could have raised on his thwarted appeal. The cause will be remanded to the district court for an evidentiary hearing limited to the questions whether Riser’s lawyer knew that he wanted to appeal, knew that his client was indigent, and knew that his client was ignorant of his in forma pau-peris rights or the procedure to appeal. If the district court decides that Riser was deprived of the effective assistance of counsel, then, as in Sanders, “it should give the California courts the opportunity to allow the appeal and pass on the substance” of his other claims of error. (Sanders v. Craven, supra, 488 F.2d at 480.)
Reversed and remanded with instructions.