Petition for Writ of Certiorari — Lozada v. Deeds

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EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING, IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED,

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER Term, 1989

JOSE M. LOZADA,

Petitioner,

vs.

GEORGE DEEDS, Warden, et al,

Respondent.

PETITIONER FOR WRIT OF CERTIORARI

~

TO THE UNITED STATES COURT OF APPEALS : Room

FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Jose AM.

Lozada

So Desert Co.-r'l Ctr.

P.O. Box

Indian

208

Springs, Nevada 89070

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Pe _.c:oner,

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GEORGL CEEDS, warden, ei a.,

Responduen:.

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

The pe: “.oner, Jose '. Loazaca, asks eave co f..e ne

atzached pe’.:..on for a writ of certiorari w::hou~ prevayrer: of

eosts ani -9 proceed in forma pauper:s. Pe-itioner has previ y

been granted ‘leave -o so proceed? in -_-he Un'.ed €. aes Dis ¥

Cour: , D:s-r.¢ of Nevada and «he Dis:rie Cour., C.ark Coun’ y,

Nevada, both have author:zes paurer s:a*us in nis case.

Pe.:-.:oner's aff£:dav:

"

az-tached nere:‘o,

DATED chis #3 day of Ju_y, 1990.

uppor’. of <~h:s motion and exh.b::s

I, Jose M. Losada, bn; f-.rs: du.y svori, cepose and say

I am -he pericconer in whe apove-en Pc Case, ina. .n suppor. oat

my Mor.on for .eave -o Proceec In Forsna Pauper.s, I s a:

heeause of my pover:y I am unab:e <9 pay .nhe cos of .his ease or

< ~%

- ~ - ~ e* a anes -~thaae rf } ‘ ws i ;

oOo g-ve secur nererar; ane na 4 ef eave 4 @2 en ae m

2

recress.

I fur: her swear wha. che responses wh.cn I have made .9 whe

quesi_ons and instructions below relating <0 my ab2>.-cy to pay the

cosi of proceeding in <his Cour: are -rue.

1. Are you presen:!y emp_oyed? Yes No. X_

a. If the answer is yes, s.ate ‘he amouni of your sa-ary

or wages per month and g:ve the name and address of

your emp.oyer.

b. If che answer :s no, sz:aie <=he G3a.e oO

emp.oymen: and amoun. of che sa-ary :r wa3

which you rece vec,

November 11, 1986, $1,000.00 per month.

a re . ee ee ee es ee ee ie ee ee

2. Have you rece.ved w ‘hin the pas. cwe.ve mons any -nceome

fren a business profess:.on, or ovner fori >f

se f-enmp _ocymren., or in ne for of ren SYMONS,

nteres , d:vidends or orher sources?

Yes 0. &

a. If -he answer is yes, describe each source of -ncome

ar Sca.e che amoun. receivec ‘fron eacn curing ne

Sas we.ve mon-hs.

3. Do you own any cash or cneck_ny or savings eccoun:?

Yes No. X

a. if the answer :s yes, s:a:e che :o°a va2a-ue of whe

ems owned.

d, Do you own any rea ePs-ate, S:OCK, bones, Ao @s,

au.omob.iles, or orther valuable proper:y (exc_uding

ord_nary household furnishings anc ¢clozhin 12)? Yes Nok

a. If ihe answer is yes, d@escecribe the oroper-y anc s.ace

: Ox:imacte va.ue,.

5S. Lis: the persons who are dependen: upon you for suppor:

and szate your re _a=.onship to those persons.

None

I undersianc :ha’.a fa'se siaremen or answer io any ques (on

a: “ae? davart % Subjec. me .O pena: :.es ail oerjur).

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stee : er o* 5 £ -

Subser.bed and sworff™c betare Ee colon BS

~ nary J.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER Term, 1989

JOSE M. LOZADA,

Petitioner,

v.

GEORGE DBEDS, Warden, et al,

Respondent.

pacor OF SERVICE

I, Jeee &. Lesadéa, do swear or declare that on this date,

» 1990, pursuant to Supreme Court Rules 29.3 and

29.4, I have served the attached MOTION FOR LEAVE TO PROCEED IW

FORMA PAUPERIS and PETITION POR A WRIT OF CERTIORARI on each party

to the above proceeding, or that party's counsel, and on every

other person required to be served by depositing an envelope

containing the above documents in the United States mail properly

addressed to each of them and with first-class postage prepaid.

The names and addresses of those served are as follows:

BRIAN MCKAY, Attorney General

C/O Robert J. Gower, Deputy Attorney General

Criminal Justice Division

State Mailroom Complex

Las Vegas, Nevada 89158 ee P

Subscribed and Sworn to Before Me potter ern n--------

this pl 3 day of Jely, 1990. 1 AF Notary Pubic Stat. Of Nevads

ounty and State.

ReGeivt RECEIVED

Bee ahs AND 3 it: p

08 Wee 8 a. -=*7 o: ae -c & ee ih "29

JNYLS = Gi. ‘UNITED STATES DISTRICT COURT Mas 5 6 Se MH ,

35.00 py DEPeReeT OF NEVADA Wet

Ce TEGT 2 hee ZZ bP

~ DEPUTY

Josh; LOZADA_

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Ay. f. ° 2 7 my

Petitioner, ~ v ASE” NO! 172? 106 (LL RL)

(To be supplied by the Clerk)

vs.

)

)

)

)

) IN FORMA PAUPERIS AND

)

)

)

)

SUPPORTING DECLARATION

(Pursuant to 28 U.S.C. §1915

and 28 U.S.C. §1746)

-Reapondent-,

I hereby apply for leave to: (check one)

Max/ Commence this action for habeas corpus/civil rights

relief

{/ Pursue this action under 28 U.S.C. §2255 or

Fed.R.Crim.P. 35

without prepayment of fees and costs or giving security therefor.

In support of my application, I state that the following facts are

true:

1) I am the party initiating said action and I believe

that I am entitled to relief.

2) The nature of this action is: Betition for Writ of

HABBAS CORPUS pursuant to 28 U.S.C., Section 2254.

‘

3) I am unable to prepay the costs of this action or give

security therefor because of my poverty.

Exhibit "1"

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Rev. 6/88

4) I have no assets or funds which could be used to prepay the

fees or costs, except: AV)'c -N/A—

ail , ds 4 o od

Tumse . Mya fe we Lon NR

(Write “none” above if you have nothing; otherwise list

your assets.)

5) During the preceding twelve months, I have received income

(Wages, gifts or other payments) from the following sources:

ELE N/A

N/A

N/A

(List both amount and source.)

6) You may state briefly any additional financial or other

information regarding your ability to pay the costs of this

action (for example, persons who are dependent on you for

Support): ange N/A

eevee 2 £5 € G. N/A

‘lL ¢ ge - A * s+) uw! Phat e hy, y 4 ‘Way N7A

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I understand that a false statement or answer to any question in this

declaration will subject me to penalties of perjury.

I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE UNITED STATES

OF AMERICA THAT THE FOREGOING IS TRUE AND CORRECT. 28 U.S.C. §1746 and

18 U.S.C. §1621.

Javoaer ip ~ #9

Executed at on

rary Date

gn

JOGE HK. LOB

#23574

(Inmate's Prison Number)

I request that an authorized officer of the penal institution

in which I am incarcerated complete the Certificate below regarding

funds on deposit in my account at said institution.

ode 7 Lt,

(Signature) ~

(Name Princed}

74

Inmate's Prison Number )

CERTIFICATE

I hereby certify that one eprfew AP ae the movant herein

had cash and securities in the amount of $__ Le. IP

On account to his/her credit at the penal institution where (s)he

is confined.

(Please sign in ink ina

color other than black.) po Rt

Authorized Officer of Penal

Institution

j2.- 76 £8 ; 7

(Date) GA ee Ch

Title

o 2 * x* *«* * * ot x *

ORDER

In reliance upon the representations and information set forth in

the above motion, declaration and certificate, IT IS ORDERED THAT

Z./ The motion for leave to proceed in forma pauperis

is granted: and the Clerk of the Court is directed

to file the complaint. The movant herein is permitted

to maintain this action to conclusion without the

necessity of prepayment of fees or costs or the giving

of security therefor.

{./ This order granting in forma pauperis status shall

not extend to the issuance of subpoenas at government

expense.

{_/ The Clerk of the Court is directed to issue summons to

defendant(s) herein and deliver the same to the United

States Marshal for service.

| -3-

ae

{/ The plaintiff shall have twenty (20) days within which

time to furnish to the United States Marshal the

required forms USM 285.

{_/ Plaintiff shall serve upon defendant(s) or, if

appearance has been entered by counsel, upon the

attorney(s), a copy of every further pleading, motion

or other document submitted for consideration by the

court. The plaintiff shall include with the original

paper to be filed with the Clerk of the Court a

certificate which states the date that a true and

correct copy of any document was mailed to the

defendant(s) or counsel for the defendant(s). Any

paper received by a district judge or magistrate

which has. not been filed with the Clerk of the Court

or which fails to include a certificate of service

will be disregarded by the court.

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|

The Clerk of the Court shall file the petition for a

writ of habeas corpus and shall serve respondent(s) by

certified mail but the respondent(s) shall not have

to answer said petition unless the court subsequently

orders otherwise.

/__/ This motion for leave to proceed

is denied.

Dated: 3 Mbit LAT

UNITED’STATES DISTRICT JUDGE/

UNITED STATES MAGISTRATE

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. Sisirict Coury .

CLARK COUNTY, NEVADA

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CLLRK

JOSE M. LOZADA,

| Petitioner, Case No. C75275

| vs- Dept. No. IIr

Docket No.

| THE STATE OF NEVADA,

Respondent.

ORDER FOR PERMISSION TO PROCEED IN FORMA PAUPERIS

This matter having come before the Court and good cause appearing that the

Petitioner herein has met the burden of responsibility in the matter of

application for this ORDER, through the Motion for Permission to Proceed In Forma

Pauperis, and showing due cause by and through the Affidavit as required by law, the

Petitioner , herein is found to be justly qualified and competent to proceed

without paying of fees or the costs of Prosecuting this action, or the providing of

securities thereof. Therefore it is:

ORDERED that the Petitioner herein be given Leave to Proceed in

Forma Pauperis in the above-entitled matter before this Court.

DATED: cs Le Se , 198k.

JOSEPH S. PAVLIKOWSnx,

JUDGE OF THE DISTRIC COURT

Jose M, Lozad& #23574 Exhibit "2"

Petitioner In Pro-Per

P.O. BOX 208-SDCC

Indian Springs, Nevada 89070

go . 90°5393

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER Term, 1989

JOSE M. LOZADA,

Petitioner,

vs.

GEORGE DEEDS, Warden, et al,

Respondent.

PETITIONER FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

RECEIVED,

AUG 03 1990

Urine ur tot CLERK Jose M. Lozada

SUPREME COURT, U.S. So Desert Corr'l Ctr.

P.O. Box 208

Indian Springs, Nevada 89070

QUESTION FOR REVIE'

Whether Petitioner was denied effective assistance of counse

t a critical stage in the proceeding ieading to his incarceration,

because he was never apprised of his rights t® an appea’ and to

counse! on appea!, and did he voluntarily, understanding y a

intelligently acquiesced in his failure to take an appeal, and di

the court error by ‘not holding an evidentiary hearing on the

merits.

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BSRRSREBBER BS

QUESTION FOR REVIEW

TABLE OF CONTENTS

TABLE OF AUTHORITIES

OFFICIAL AND UNOFFICIAL REPORTS OF OPINIONS IN THE CASE

JURISDICTIONAL STATEMENTS

PROVISIONS

INVOKED

STATEMENT OF THE CASE

ARGUMENT

CERTIFICATE

OF MAILING

TABLE OF CONTENTS

PAGE NO.

TAELE OF AUTHORITIES

ASES CITED:

aniels v. Alabama, 487 F.2d 887 (1973)

ouglas v. California, 372 U.S. 353 (1963)

ay v. Noia, 372 U.S. 319 (1963)

airson v. Cupp, 415 F.2d 352 (1969)

oodwin v. Cardwell, 432 F.2d 521 (1970)

eike v. United States, 217 U.S. 423 (1910)

ackson v. Turner, 442 F.2d 1303 (1971)

oo ao TF ann ee OhUh!DLUCU

ohnson v. Zerbst, 304 U.S. 458 (1938)

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Lane v. Brown, 372 U.S. 477 (1963)

_

_

Nelson v. Peyton, 416 F.2d 1154 (1969)

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Penson v. Ohio, 102 S.Ct. 346 (1988)

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Riser v. Craven, 501 F.2d 381 (1975)

_

—

Swenson v. Bosier, 386 U.S. 258 (1967)

_

or

_

fap)

Townsend v. Sain, 372 U.S. 293 (19€3)

_

~

United States ex rel. Williams v. LaVallee,

Willey v. Coiner, 464 F.2d 525 (1972)

CONSTITUTION CITED:

Sixth Amendment

Fifth and Fourteenth Amendments

Nevada, Article 1, Sect.:ion 8

STATUTE CITED:

Title 28 U.S.C. Section 2254(d)

Nevada Ru’es of Appellate Procedures

Nevada Revised Stazes

(i+:)

United States ex re’. Smith v. McMann,417 F.

Rodriguez v. United States, 395 U.S. 327 (1969)

United States ex rel. Singleton v. Woods, 440 F.2d 835

2d 648 (1971)

487 F.2d 1006

OFFICIAL AND UNOFFICIAL REPORTS OF OPINIONS IN THE CASE

JOSE M. LOZADA v. GEORGE DEEDS, 9ch Cir. 1990, Casé¢

No.90-15612.

JOSE M. LOZADA v. GEORGE DEEDS, Dist. Ct. Nev. 1988,

ase No. CV 89-173-LDG.

JOSE M. LOZADA v. THE STATE OF NEVADA, Nev. Sup. Ct. 1988,

Case No.19333.

JOSE M. LOZADA v. STATE OF NEVADA, Dist. Ct., Clark County,

onaontn an &. © FS

Nev. 1988, Case No.C75275.

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JURISDICTIONAL STATEMENTS

_

_

Jurisdiction of this Court is invoked due to the following:

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1. On May 30, 1990, the United States Court of Appea’ for the

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Ninth Circuit denied Petitioner's request for a certifica-e of

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probable cause;

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or

2. On April 3, 1990, the United States District Cour: for the

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District of Nevada denied Petitioner's certificate of probable

_

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cause;

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3. On March 13, 1990, the United States Dis*ric: Judge, Lioyd

D. George, denied Petitioner's Writ of Habeas Corpuspursuant to 28

-S.C. Section 2254, by a Person in State Custody;

5. On October 21, 1988, the Supreme of Court of Nevada Order

ismissing appeal of appellant's petition for post-conviction

elief;

6. On July 18, 1988, the Distric* Court, Clark County, Nevada

enied Petitioner's Petition for Post-Conviction Relief; and

7. Pursuan. cto Rule 10 of the Rules of this Cour:.

nor 2 eS 2 ee

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18

PROVISIONS INVOKFD

1. The Constitution of the United States, Sixth Amendment,

nd Fifth and Fourteenth Amendments.

2. The Constitution of the State of Nevada, Article l,

ection 8;

3. Title 28 U.S.C. Section 2254(d);

4. Nevada Rules of Appellate Procedures; and

5. Nevada Revised Statues.

STATEMENT OF THE CASE

In March 1986, the Petitioner re-ained James Buchanan, Esquire

for $3,000.00 dollars as defense counse! for a jury trial. On

ovember 5, 1986, the juror returned a verdict of guicy. Then on

December 16, 1986, Petitioner was sentenced withou' defense counse:

informing the trial cour: of his financial statute and desire to

appeal. The trial! court did not made an inquiry or informed him of

his right to an appeal and to counse’ no appeal. Petitioner also

had a court-appointed interpreter throughout his jury <r-al and at

sentencing. (See Exhibit "3")

On June 16, 1988, District Court, Clark County, Nevada held a

hearing on Defendant's Proper Person Motion to Proceed in Forma

Pauperis, Defendant's Proper Person Motion to Appoint Counse:, and

Defendant's Proper Person Writ, Petitioner not present represened

by James Buchanan, who was allowed to withdraw as counse:. Matter

continued for Argument. (See Exhibit "3")

On July 7, 1988, Discrict Court, Clark County, Nevada held a

hearing for an argument on writ, Petitioner appearing in Proper

Person with a cour--appoinied interpreter, and the Cour. summarily

23°)

denied Petitioner's Writ of Habeas Corpus. (See Exh:ib:: "3

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On September 6, 1988, Petitioner was "notified" that the Clerk

f the Nevada Supreme Court has this day received the following:

Record on Appeal, Vol. I (copy). (See Exhibit "4") Petitioner was

ever forward a copy of said Record on Appea!.

On October 21, 1988, the Supreme Court of Nevada dismissed his

appeal stated: "(I)n the present case, appellant claimed claimed

beiow that his counsel was ineffective because he failed to inform

appellant that he had the right to appointed counsel ina direct

appeal and because counsel falsely informed him that he had given

appellant's case _ fi} to the public defender ‘to prosecuce

appellant's direc: appeal. Appeliant neglected, however, ‘0 set

forth any issues that could have been raised ina direct appeal,

and further failed to allege or demonstrate that such an appeal

ould have been successful. Therefore, appeliant failed to

demonstrate that the alleged deficiencies of his counsel prejudiced

him in any way." (See Exhibic "5")

On March 13, 1990, the United States District Cour’, District

of Nevada denied Petitioner's Writ of Habeas Corpus pursuan: *o 28

U.S.C. Section 2254 without an evidentiary hearing being_held, and

stated: "(C)ounsel's failure to inform Lozada of his right to

appeal could very well have fallen below constitutional standards.

However, the court need not decide CRBC iG98URce © © ©

Consequently, he has nut shown any prejudice flowing from counsel's

failure to advise him of his right to appeal... ... . IT IS

ORDERED THAT the United States Magistrate's Report and

Recommendations (#9) be adopted." (See Exhibit "6")

2

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On April 3, 1990, the United S‘*ates District Court, District

f Nevada, denied Peritioner's certificate of probable cause, and

stated: "After reviewing the record in this case, the court

determines that Lozada's appeal fails to raise a substanzial

question for review by the Circuit Court of Appeals. Lozada simply

has not shown that he suffered any prejudice even if his aitorney's

conduct fell below constitutional standard. Thus, any appeal would

be friviolous."” (See Exhibit "7")

On May 30, 1990, the United States Cour: of Appea! for the

Ninth Circuit denied Petitioner's request for a certificate of

probabie cause. (See Exhibit "&")

ARGUMENT

A close examination of this case wi’: subs:antiate tha: there

was no consideration given directly to the issue of whether

Petitioner was informed in the first instance of a right to appeal,

nor does it appear with clarity whether in fact the Pe:itioner in

this case had been aware of his right to appeal. "(W)here the

right to appeal a criminal conviction exists, it exists oniy by

Statute." See Heike v. United States, 217 U.S. 423, 30 S.Ct. 539,

54 L.Ed. 821 (1910). Under federal standards, one may no-*

reiinguish intentionally an unknown right. Johnson v. Zerbst, 304

U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Fay v. Noia, 372

U.S. 319, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).

In the instant case the determinative, basic guestion is

whether Petitioner knew that he had a right to appeal. An indigent

has a right to be advised that he is entitled to cour: -appointed

counse. on appeai. Douglas v. California, 372 U.S. 353, 83 S.Ct.

| |

14, 9% L.Ed.2d 811 (1963); Swenson _v. Bosler, 386 U.S. 256, 8&7

.Ct. 996, 18 L.Ed.2d 33 (1967). In addition, a defendant, whether

indigent or not, also has the right to be properly advised of his

right to appeal. Nelson _v. Peyton, 416 F.2d 1154 (4th Cir.1969),

cert denied, 397 U.S. 1007, 90 S.Ct. 1235, 25 L.Ed.2d 420 (1970);

Willey v. Coiner, 464 F.2d 525 (4th Cir.1972); Daniels v. Alabama,

487 F.2d 887, 888 (5th Cir.1973); United States ex rel. Williams v.

LaVallee, 487 F.2d 1006 (2nd Cir.1973), cert denied, 416 U.S. 916,

oo OoNRD AHR OH &® © Bw

94 S.Ct. 1622, 40 L.Ed.2d 118 (1974). The communication to czhe

defendan: his right to appea! is general!y made by defense counsel

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or the court, which will satisfy federa! standards. See Jackson v.

_

—_

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Turner, 442 F.2d 1303, 1307 (10th Cir.1971); United States ex rel.

Singleton v. Woods, 440 F.2d 835, 8336 (7“h Cir.1971); United States

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ex rel. Smith v. McMann, 417 F.2d 648, 654 (2nd Cir.1969), cert

me

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denied, 397 U.S. 925, 90 S.Ct. 929, 25 L.Ed.2d 105 (1970); Goodwin

_

or

v. Cardwell, 432 F.2d 521 (6th Cir.1970).

_

rn

17 Petitioner did not know of his right to appea., and the

absence of such knowledge is a clear indication that the was denied

the effective assistance of counsel. Compare the case at bar with

Gairson v. Cupp, 415 F.2d 352 (9th Cir.1969). This follows because

he did have a right to appeal, and it was the duty of his counsel

to advise him of the right and how and when to exercise it. In

Rodriguez v. United States, 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d

340 (1969), rejected the requirement of showing of some likelihood

of success on appeal as a condition precedent: to habeas corpus

relief. In addition, there was no evidentiary hearinc ae!d under

the unusua! circumstances of this case in accordance <:o the

ZBRSRE BRB

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12

BERSREBB

eaching of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d

70 (1963), where ali of the facts should have been further

eveloped.

Petitioner implies that he was not provided effective

ssistance of counsel with respect to a critical stage in the

roceeding leading to his incarceration so that, in accordance with

urrent constitutional doctrine, he should be entitled to relief,

ee Penson v. Ohio, 0.8. , 109 §.C+. 346 (1988), is the

eterminative basis for the protection of his appeallate rights.

The appropriate relief is indicated by the Supreme Court's

isposition of Lane v. Brown, 372 U.S. 477, 485, 83 S.C:. 768, 773

(1963). See also Riser v. Craven, 501 F.2d 381 (9th Cir.1975).

DATED chis A9 day of _. CAL , 1990.

Respectfully submitted,

Jose M. Lozada

Petitioner In Pro-Pre

CERTIFICATE OF MAILING

I hereby certify that a true and correct copy of the above and

foregoing Motion for Leave to Proceed In Forma Pauperis were mailed

n 27 day of .Juwe , 1990, addressed to:

BRAIN MCKAY, Attoney General

C/O Robert J. Gower, DAG -

_Criminal Justice Division

State Mailroom Complex

fet ae oe

ose M.

Las Vegas, Nevada 89158

Lozada 7

So Desert Corr'l Ctr.

P.O. Box 208

Indian Springs, Nevada 890970

Petitioner In Pro-Per