Opposition Brief — Lewis v. Delgado

Docket No. 99-451

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1999

GAIL LEWIS. WARDEN, et al, Petitioners

v.

JESUS GARCIA DELGADO, Respondent

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

Michael B. Dashjian

P.O. Box 512

San Luis Obispo CA 93406-0512

Telephone: (805) 460-0300

Facsimile: (805) 460-0349

Counsel of Record for the Respondent

Jesus Garcia Delgado

(Appointed by the Court of Appeals

Under the Criminal Justice Act)

Member of the Supreme Court Bar

RECEIVED

OCT 2 2 1999

OFFICE OE THE CLERK

SUPREME COURT, U.S.

Pe

TABLE OF CONTENTS

RE ST PT TE 8 5s RR Oe ee ee ee ll

OE Ris RU ho ee ne ok aes oe Aa le ae we ae a ak ee ee l

SIATEMENT OF PROCEDURE AND FACTS 2.0.5.5 006 vad ein sees 6

tt Me an ne eee rune ae Ae Fiera arman rie ertheless ag 10

I. Denial Of Counsel At Sentancing.................000 ccc eeee 10

I. Conflict Of Interest Of Co-Defendant's Counsel Who Purported To

Submit Respondent's Sentencing In The Absence Of Respondent's

MRC LITER CeCe Ce CPO FOP TUTE CP ete ue ae,

III. | Failure Of Prior Appellate Counsel To Raise Either Of The Issues In I

PRT Si ee ee eh 13

Vv. Response To Petitioners’ Cia... 2. 6 .e cei essence enie, 15

A. I gag oer ae Oka wicca A a bw ae Ad ee i

B. a a a a rr eae 24

SEPARATE GROUNDS FOR AFFERMANCE .................0cccceeeeae 30

TABLE OF AUTHORITIES

CASES

Anders v. California, 386 U.S. 738 (1967) .......... 8. 10, 15-20, 22-24, 27-29

SE i De, re Stee: UR OINED ees 8 5 ee ee ee a 8 wd Sas 26

Cardwell v. Greene, 152 F.3d 331 (4th Cir.),

Care ee, Sr ae. Se Sa. EOE. BTR ea ce ek ec eee 28

Conway vy. California Adult Authority, 396 U.S. 107 (1969) (per curiam) ........ 5,11

County of Kern v. Diller, 69 Cal.App.4th 1412,

eR cb a 0 oe a a ad eB 5

ee ey Pe ee ts ES a he ae ee ee we a eee 1]

Delgado v. Lewis, 181 F.3d 1087 (9th Cir. June 23, 1999) ............. 6, 9, 11, 28

eee V. Ce SR, Fare Se Ge CED 5 5 ce a da eee see 19, 20, 22, 29

Belts v. Decay, SP UD. FET, SO CTR) oe na ie se ee ee eee io, 17, 24..30

Ce Te, ee ae Fa Ce Ce OPO hh i eh ee ee aD 27

Glasser v. United States, 315 U.S. 60 his ‘cet ON eee Tae ie ee 2, 12

Golden v. Mewsome, 725 F.20 TOTS CL Ce. POR) ok ne ee ee hae 2

cay wv. Eee, GO Se es Ca Ge ED) is ek eas eee Pees 12

ees oS Se a CD ok ok ne ee he ee we Ee ie

remmerenn v. Maree, 420 GS. G57 CISD) «on i oe Ch Re ee wes 12

pon +. Come, Te FOR Boe ee a TDD sn ks ke hk a ek es Eee 28

Peerneet v. ay, DOe ae 8150 GG. THRE) 5. 6 kc eh i een eens 28

peusvinn v. ew Tae, Sia 0.0. Bae CERO) ose eb ee hes oe ee ees 18, 20

otis vy. Wee, 156 E36 177 (96 CW. TRE) nc cc cc cc eee ead 27

In re Sade C., 13 Cal.4th 952, 55 Cal.Rptr.2d 771,

We Oa SU CUED sé 8 oa ah peck ok cab eal a ne een 5, 15, 16, 23

SORRGG: ¥. MR. Fe Se Le 6 eS Se ce Oa ee 12

Ramet 0. Se, Te Fe Be CROC: Te. i 5.4 ee 0 ewe eek eee ees a :

McCoy v. Court of Appeals, 486 U.S. 429 (1988) ............ 0... cee wees 17, 18

McLee v. Angelone, 967 F.Supp. 152 (E.D. Va. 1997) ................2 20000. 28

we BR 2) rn a we eee

Moya v. United States, 745 F.2d 1044, 1048 (7th Cir. 1984) .................... 3

Northwestern Indiana Telephone Co. v. FCC, 872 F.2d 465 (D.C. Cir. 1989) ........ 3

Pairasso v. Neisom, 121 F.36 257 CP Cie: TORT) www nk ck cc kc cc weccescuncnas 2

Penson v. Ohio, 488 U.S. 75 (1988) ................. 5,-8, 15-19, 21, 23-25, 27-29

People v. Barton, 21 Cal.3d 513, 146 Cal.Rptr. 727,

Ue COE 6s kg ee eae dees KW eke ee 21

People v. Feggans, 67 Cal.2d 444, 62 Cal.Rptr. 419,

SC I oo 6 on Hel ain e544 ach Ae ee ee 16

People v. Mroczko, 35 Cal.3d 86, 197 Cal.Rptr. 52,

ee ee Ns ka ee akc es ee VEN E OA aed ke ee ae 12

People v. Wende, 25 Cal.3d 436, 158 Cal.Rptr. 839,

oe 8 Bi, eee ee re ere re re ee 5, 15-17, 23

Pee i ee, ee aes 5s 6 a eck eS Ree ee OA ek ew ae 22

ee ee a RU se ek xk we 6 oe a SA wate eas 30

Smith v. Robbins (U.S. No. 98-1037, cert. grd. March 8, 1999) ................. 23

State v. Balfour, 311 Or. 434, 814 P.2d 1069 (Ore. 1991)... 2. ..0.0202020.0.0.2....4.4. 23

Strickland v. Washington, 466 U.S. 668, 692 (1984) .............. 2, 10, 14, 26, 29

waar OE ae ee Cae SE Ss COED 66a sew i ae we ee ee 2

United States v. American Ry. Express Co., 265 U.S. 425 (1924) ..... 1, 11, 13, 14, 30

United States v. Arthur Young & Co., 465 U.S. 805 (1984) .............0...... 30

United States v. Balough, 820 F.2d 1485 (9th Cir. 1987) ..................00.. 2

United States v. Breckenridge, 93 F.3d 132 (4th Cir. 1996)..................... 2

United States v. Cronic, 466 U.S. 648 (1984) .............. 2, 4, 10, 17, 18, 26, 30

ee aun t. Cares, oom Woe baz COO CW. I9TT) . wk cee eee wee 2

United States v. Gonzales, Se eee Pe Cs AEE CM ee ee 2, 10

ieee aeons ¥. Gemeee, Sou Fr .2e 46 (isi Cr. 1998)... eee een tas 2

United States v. Salemo, 61 F.3d 214 (3d Cir.),

rr rr rr ee Se ek a ke he dk bea wa we wm ee en 2

United States v. Taylor. 933 F.2d 307 (Sth Cir.),

rr rr Or es 5 ks flaw Rae ke wee ae ede de OD Z

Pcs eee Oe OF, POC EOR) oc ck os a eee ne beeen aeen 12

Walnut Properties, Inc. v. City of Whittier, 861 F.2d 1102

(Sth Cir. 1968), cert. denied, 490 U.S. 1006 (1989) .... 2. eee 3

Washington v. Confederated Bands and Tribes of the

ee Dees Pome, oe 41.0, MGS (ISTS) 2. ee ca eas 30

ee ee | a 28

Witters v. Washington Dep't of Services for the Blind,

Nt ae Tl sae nar eal 2 ty ie dd led wane @ ae 23

Se I tO RED ch Fe Wk ee eee Nee ae wes 11

STATUTES

Ee Cr ie Nee ho ohn ciao agi gay ata Whale RoR he le 25. 29

ge ec UE Lee pe eek ee ORE Fees 7

1V

CONSTITUTIONS

re aes SII Src ale a igs to Men Oke ne er me ea ae Beg) 17, 28

Se: Ag TO ee sc he a a ee EE ad a or ee 30

COURT RULES

Seb ES 4.6 4a owes Le a Oe ne ee ee eee eee 21

OU ass anh aot be eek Latins Eoridinect aren ca da et ee ee 25

ee A ease ae kage ee peek eee nae ree Ce ener are 21

OTHER AUTHORITIES

"Fed. Judge Blasts Calif. Defense Pair,"

National Law Journal (March 22, 1999)... 0.0.0.0... 0.00000 cee cece ee. ]

INTRODUCTION

In a petition most noteworthy for what it omits, petitioners ask this Court to grant

certiorari to render an advisory opinion. For irrespective of what happens on the Anders v.

California-related issues which are the only issues petitioners address, the District Court's

conditional grant of habeas corpus must ultimately be affirmed. Whatever happens with the

petition, there remain issues--easy issues to spot, which were raised below--which would

inevitably result in affirmance even if this case returned to the Court of Appeals. See United

States v. American Ry. Express Co., 265 U.S. 425, 435-36 (1924). The simplest are:

(1) Respondent was totally denied counsel at sentencing, when his own appointed

attorney failed to show up and also submitted no written materials on respondent's behalf; and

(2) Prior appellate counsel was ineffective in failing to raise that issue.

After respondent's attorney was a no-show at his sentencing, the attorney for a co-

defendant--who was obtaining a superb result for her own client--purported to "stand in" for

respondent. But like respondent's own attorney, the senegal "stand-in counsel" didn't do

anything on respondent's behalf. She just said: "Submitted." No one told respondent he could

have his own attorney at his sentencing, let alone an attorney who would actually represent

his interests. The result was a denial of counsel, and a breakdown of the adversariai system.

If there were any doubt that respondent's counsel didn't show up for his sentencing and

another attorney ostensibly "stood in" but did nothing, respondent quotes petitioners’ counsel:

"Having somebody stand in is very common in the trial courts, certainly in the context of a

. sentence." "Fed. Judge Blasts Calif. Defense Pair," National Law Journal (March 22,

1999), p. A6 [copy attached as Appendix B]. Thus, petitioners acknowledge that is what happened.

Far from "very common," it is virtually nonexistent. So it should be, since a defendant

has the right to the advocacy of counsel at sentencing. That right is patently denied when the

defendant's counsel doesn't show up and submits nothing in writing, and a co-defendant's

attorney purports to "stand in" but also does nothing. Respondent attaches a transcript of what

"stand-in counsel" did on respondent's "behalf” at sentencing, RT 44-45, as Appendix A.

It is long settled that if a defendant is totally denied the benefit of counsel at a critical

stage of his proceedings, the defendant must be granted a single proceeding with the benefit

of counsel. Sentencing is a critical stage of proceedings. Mempa v. Rhay, 389 U.S. 128, 134-

37 (1967); United States v. Gonzales, 113 F.3d 1026, 1029 (9th Cir. 1997); United States v.

Breckenridge, 93 F.3d 132, 135 (4th Cir. 1996); Lopez v. Scully, 58 F.3d 38, 41 (2d Cir.

1995). Denial of counsel at a critical stage is reversible per se. United States v. Cronic, 466

U.S. 648, 659 n. 25 (1984), and seven cases cited; Strickland v. Washington, 466 U.S. 668,

692 (1984); Glasser v. United States, 315 U.S. 60, 76 (1942).

Thus it is clear that denial of counsel at sentencing is reversible per se as to

sentencing, and the defendant remains entitled to a single sentencing with benefit of counsel.

E.g., Mempa v. Rhay, 389 U.S. at 137; Patrasso v. Nelson, 121 F.3d 297, 304 (7th Cir. 1997);

United States v. Salemo, 61 F.3d 214, 221-22 (3d Cir.), cert. denied, 516 U.S. 1001 (1995);

Tucker v. Day, 969 F.2d 155, 159 (Sth Cir. 1992); United States v. Mateo, 950 F.2d 44, 48-50

& nn. 8-9 (ist Cir. 1991); United States v. Taylor, 933 F.2d 307, 311-12 (Sth Cir.), cert.

denied, 502 U.S. 883 (1991); United States v. Balough, 820 F.2d 1485, 1489-90 (9th Cir.

1987); Golden v. Newsome, 755 F.2d 1478, 1482-83 (11th Cir. 1985); United States v.

Daniels, 558 F.2d 122, 127 (2d Cir. 1977).

In short, respondent is still entitled to that single sentencing with benefit of counsel,

and will inevitably be granted that most basic of constitutional guarantees at some point, no

matter how the issues in the current petition are resolved in other cases. |

Petitioners have never claimed otherwise, despite numerous opportunities. In the Court

of Appeals, respondent raised this issue in his Appellee's Brief (at 42-53). Petitioners would

have had to respond in the Reply Brief to avoid waiving the issue. See, e.g., Northwestern

Indiana Telephone Co. v. FCC, 872 F.2d 465, 470 (D.C. Cir. 1989) (argument could not be

made for first ime on remand from this Court, citing Wright and Miller and other authority),

cert. denied, 493 U.S. 1035 (1990); Walnut Properties, Inc. v. City of Whittier, 861 F.2d

1102, 1106 (9th Cir. 1988) (same), cert. denied, 490 U.S. 1006 (1989); Moya v. United States,

745 F.2d 1044, 1048 (7th Cir. 1984) (same). They didn't. So too when respondent raised this

issue after the Court of Appeals's opinion, see Memorandum of Points and Authorities in

Opposition to Motion for Continued Stay of Mandate, at 4, 7, 14, 16-17; Memorandum of

Points and Authorities in Support of Request for Disposition of Appellee's Opposition to Stay,

at 12-15: Petitioners never took issue with respondent's characterization of the facts or law.

The only real issue is how much longer respondent's case will be delayed before he

gets that one sentencing with counsel. So far, it has been 4 1/2 years since respondent was

- sentenced without benefit of counsel. And although it shouldn't matter, this wasn't a

proceeding on a stipulated sentence where counsel wouldn't have had much to do. Respondent

was given the opportunity along with five other defendants to make a case for less than the

maximum term under the plea agreement, and three of the five--all of whom had the benefit

of counsel, of course--did obtain less than the maximum term.

Denial of counsel is perhaps the single most fundamental defect there could be in a

criminal proceeding. "Of all the rights that an accused person has, the right to be represented

by counsel is by far the most pervasive for it affects his ability to assert any other rights he

may have." United States v. Cronic, 466 U.S. at 654. Mens, not only was respondent denied

counsel at sentencing, prior appellate counsel then failed to raise this easy issue. The

adversarial system broke down at sentencing, and then broke down again on appeal.

There is also the issue of co-defendant's counsel who purported to "stand in and |

submit" having a major conflict of interest. That issue was also not difficult to spot or discuss,

though it is secondary to the denial of counsel because the purported "stand-in counsel" didn't |

do anything on respondent's behalf either. And although respondent supports the Court of

Appeals' opinion in his case, he doesn't need any of the Court of Appeals' opinion to stand

in order to prevail, because of the other issues adverse to petitioners as described above.

The instant petition seeks to add delay on top of delay in getting this case to where

the Constitution clearly requires it to be, a grant of a single sentencing with benefit of

——~eounsel. That is all respondent seeks. On such a fundamental, basic issue, truly, "[jJustice

delayed is justice denied." John Bartlett, Bartlett's Familiar Quotations 446 (16th ed. 1992)

[Prime Minister William Gladstone (1809-1898)].

With all of the above adverse issues squarely in their way--issues which petitioners

have never contested, on either the facts or the law, and have by now waived--petitioners have

instead taken the approach of simply ignoring them. Respondent does not agree that such

major omissions should be rewarded with a grant of certiorari. Respondent respectfully asks

this Court to follow its approach in another case, where the petitioner failed bring to this

Court's attention adverse matters which would inevitably be fatal to the petitioner's cause:

4

a

"Were we to pass upon the purely artificial and hypothetical issue tendered by the

petition for certiorari we would not only in effect be rendering an advisory opinion but also

lending ourselves to an unjustifiable intrusion upon the time of this Court." Conway v.

California Adult Authority, 396 U.S. 107, 110 (1969) (per curiam).

Finally, on the issues addressed in the petition, petitioners make claims about

California's law on "no-merit briefs" that are not true. They ascribe to People v. Wende, 25

Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071 (1979) a procedure contrary to Anders v.

California, 386 U.S. 738 (1967) that isn't anywhere in Wende, and which the California

Supreme Court doesn't at all follow. The state Supreme Court follows Anders, as confirmed

by its recent opinion in Jn re Sade C., 13 Cal.4th 952, 55 Cal.Rptr.2d 771, 920 P.2d 716

(1996). See also County of Kern vy. Diller, 69 Cal.App.4th 1412, 1418-20, 82 Cal.Rptr.2d 318

(1999) [Wende merely follows and is no broader than Anders v. California; following Sade

C.]. Petitioners thus claim a conflict between the Ninth Circuit's opinion in this case and

California law which is simply nonexistent, as both the Ninth Circuit and the California

Supreme Court follow this Court's opinions in Anders v. California, 386 U.S. 738, and

Penson v. Ohio, 488 U.S. 75 (1988). Petitioners also seriously misinterpret the Court of

Appeals' opinion in this case, again seeking to create a "conflict" that simply doesn't exist.

Petitioners’ omissions are numerous and material, and their petition seeks "relief" that

is artificial and not substantive. That alone warrants denial of the petition. On top of that,

petitioner's interpretation of California law and the Ninth Circuit's opinion doesn't hold water.

Respondent asks that the petition be denied.

STATEMENT OF PROCEDURE AND FACTS

The facts of the case are well stated in Judge Thomas’s opinion for the Court of

Appeals, Delgado v. Lewis, 181 F.3d 1087, 1089-90 (9th Cir. June 23, 1999), to which this

Court may refer. In case it is of assistance, respondent briefly recounts the facts which appear

most pertinent here. (References generally are to the Court of Appeals excerpts of record

[“ER”]; other references are to documents filed in the California state proceedings.)

As part of a six-defendant information, Mr. Delgado was charged with manufacture

of methamphetamine and related offenses. ER 26, 188. After a motion to suppress evidence

and other pretrial motions were heard and denied, see ER 97, 99, the six defendants all

entered into plea agreements. ER 133-39. In return, the trial court agreed to impose sentences

with specified maximums, and to consider any materials and argument presented in support

of sentencing below the maximum. ER 128-32.

For sentencing, counsel for five of the six defendants presented documents and

arguments for mitigation in briefs, at the sentencing hearing, or both. ER 147-50, 161-69,

171-74, 177-78, 181-85. Three of those five defendants received sentences well under the trial

court’s stated maximum. ER 175, 179, 181-86.

Alone among the six defendants, Mr. Delgado had no presentation in mitigation made

on his behalf. No sentencing brief or other documents were filed, and no witnesses or

argument were presented at sentencing. ER 157-59. In fact, Mr. Delgado’s appointed trial

counsel was a total no-show at the sentencing hearing. ER 140, 143, 357. He also had been

a no-show at Mr. Delgado’s preliminary hearing, and had relied on a co-defendant’s attorney

to explain the guilty plea form to Mr. Delgado. ER 357.

At sentencing, one of the co-defendant’s attorneys purported to act as “stand-in

counsel.” ER 143. This attorney had a major conflict, as she had obtained a court commitment

of probation for her own client over the prosecutor's strong objection. ER 181-85, 357-58.

When asked if “stand-in counsel” was OK, Mr. Delgado, who understood little English and

had limited education in rural Mexico, said yes. ER 143, 188, 295. No effort was made to

explain that he had a right to his attorney or could continue the hearing for that purpose, or

the existence or nature of “stand-in counsel’s” conflict. ER 143. “Stand-in counsel” merely

submitted Mr. Delgado’s sentencing, before securing probation fort her own client. ER 158,

182, 185. It is unclear whether Mr. Delgado had an interpreter at that time.

With no argument in mitigation on his behalf, Mr. Delgado received the maximum

sentence permitted by the plea agreement, 15 years. ER 159.'

Subsequently, Mr. Delgado’s appointed trial attorney obtained a certificate of probable

cause, ER 113, California’s requirement for permission to appeal most types of issues after

a guilty plea. Cal. Pen. Code § 1237.5. A notice of appeal was filed with the certificate. ER

112. Another attorney was appointed for the appeal, on an “independent” basis. ER 201.

' Despite the total absence of advocacy at sentencing, even this undeveloped record

contains facts that would have given an advocate ample basis for argument in mitigation.

Importantly, as the Ninth Circuit pointed out, Mr. Delgado, then 45, had no known criminal

record. 181 F.3d at 1090; see also ER 231, 251. Beyond that, Mr. Delgado told the probation

officer he and his wife were originally hired to do menial labor at the ranch where the meth

lab was later set up, i.e., maintenance and taking care of the animals. ER 194. Mr. Delgado

fully admitted participation in the manufacturing operation, albeit a subsidiary role—he

washed buckets of chemicals, and dumped buckets of methamphetamine liquid into strainer

containers, doing what he was told (a role befitting someone who apparently shoveled animal

manure). ER 193-94. Delgado’s admission of responsibility, however, impressed the judge and

persuaded him Delgado was telling the truth, at least to a substantial extent and more than any

other defendant. ER 163-64.

Mr. Delgado’s appellate attorney received a record that was missing the suppression

motions and transcripts, some of the other preplea proceedings, and other relevant documents.

See Application to Augment the Record on Appeal [post-grant of habeas], Cal. Ct. App. No.

E016476, Oct. 14, 1997, at 2-9 (copy attached as Appendix C). The attorney did not request

to augment the record to include these materials. See ibid.

The attorney told Mr. Delgado his appeal was “simply worthless.” ER 256. The

attorney then filed a no-merit brief, ER 201-13, with a short statement of procedure and

prosecution evidence from the preliminary hearing, which failed to set forth any legal points,

authority, or “anything [else] in the record that might arguable support the appeal.” Penson,

488 U.S. at 80; Anders, 386 U.S. at 744. The no-merit brief asked the court to review the

- record,.and included a declaration saying the attorney read the record and wasn't moving to

withdraw. ER 201-13.

Through a "jailhouse lawyer," Mr. Delgado filed a pro. per. supplemental brief,

arguing among other things that no one spoke on his behalf at his sentencing hearing, no one

introduced anything on his behalf, his attorney didn't even show up, and "some woman" (a

co-defendant's attorney) purported to stand in his attorney's place. ER 214-24. The Court of

Appeal opinion recited a short procedural history, made no legal analysis, and concluded: "We

have now concluded our independent review of the record and find no arguable issues. The

judgment is affirmed." ER 226-28 (reprinted at Petn. App. E, at A-45 - A-47).

Now pro. per. and in prison, and without any transcripts (since his attorney hadn’t sent

them, see ER 358-59), Mr. Delgado filed a handwritten petition for review in the California

~ Supreme Court. ER 230-31. The petition was denied without opinion. ER 235. Then, with the

help of a "jailhouse lawyer," Mr. Delgado filed a petition for habeas corpus in the California

Supreme Court, alleging among other things that he couldn't read, write or speak English, and

that his appellate counsel was ineffective and also never gave him his transcripts; and also

repeating arguments from his pro. per. papers on appeal. ER 236-42. That petition was also

denied without opinion. ER 257.

Again aided by a “jailhouse lawyer," Mr. Delgado filed a petition for habeas corpus

with the U.S. District Court for the Central District of California. ER 258. The District Court

granted the writ conditionally, subject to the State accepting jurisdiction over Mr. Delgado’s

appeal and appointing new counsel. ER 367. p

On September 2, 1997, the California Fourth District Court of Appeal reinstated Mr.

Delgado’s appeal and appointed new counsel (the undersigned). Supp. ER 21. However, it

later stayed the appeal in mid-briefing. over objection, a stay that has now been in effect for

some 16 months. 2d Supp. ER 67-68, 75-93.

On February 22. 1999, the (federal) Court of Appeals affirmed the District Court's

conditional grant of habeas corpus. Delgado v. Lewis, 168 F.3d 1148 (9th Cir. 1999,

withdrawna and superseded on denial of rehearing). The State petitioned for rehearing.

On June 23, 1999, the Court of Appeals denied the petition for rehearing, and filed a

modified opinion. Delgado v. Lewis, 181 F.3d 1087 (9th Cir. June 23, 1999). (Petitioners'

characterizations of the original opinion in their procedural section, Petn. at 5, should be

disregarded and stricken, because (i) they are — and (ii) the original opinion was

withdrawn and is a legal nullity.) .

The State's petition for certiorari was filed on September 17, 1999.

ARGUMENT

I. Denial Of Counsel At Sentencing

As discussed above, Mr. Delgado was totally denied the benefit of counsel at

sentencing. Sentencing is a critical stage of proceedings. Mempa v. Rhay, 389 U.S. 128, 134-

37 (1967). Denial of counsel at a critical stage is reversible error per se. United States v.

Cronic, 466 U.S. at 659; Strickland v. Washington, 466 U.S. at 692; United States v.

Gonzales, 113 F.3d 1026, 1029 (9th Cir. 1997).

Thus by established law, denial of counsel at sentencing is reversible per se--not that

the verdict should be reversed, but that the sentence should be reversed so the defendant can

have a single sentencing with benefit of counsel. Courts have uniformly agreed. See, e.g.,

cases cited supra, p. 2.

Respondent raised this issue as an alternative ground for affirmance in the Court of

Appeals. 9th Cir. Appellee's Br. 42-53. Petitioners failed to address it or even mention it in

their reply brief, thereby waiving the issue. See supra, p. 3. It wouldn't matter anyway,

because the issue was so clearly meritorious when respondent raised it in the Court of

Appeals. It still is, and it would be equally meritorious on any remand.

In light of that, the petition for certiorari asks this Court to rule on issues (the Anders-

related issues) that in the end can't make any difference. The Court of Appeals will still be

duty-bound to grant relief on respondent's issue, such that respondent will obtain one

sentencing with benefit of counsel. The District Court's judgment conditionally granting the

writ of habeas corpus will thus inevitably be affirmed.

The instant petition thus asks for what is effectively an advisory opinion. It won't

matter to the disposition of this case whether certiorari is granted or denied, for respondent

10

Be AGT TL PRR CSE RI a eit ARE RR

will still be entitled to a sentencing hearing with benefit of counsel, and petitioners have never

contended otherwise. If it is appropriate to dismiss certiorari when the petitioner "misstate[s]

the facts in his petition so as to create a pureiy artificial and hypothetical issue," Davis v.

Jacobs, 454 U.S. 911, 919 (1981) (Rehnquist, J.. dissenting) (citing with approval Conway

v. California Adult Authority, 396 U.S. 107), then it is appropriate to deny certiorari when the

petitioner omits key facts and law to try to create a purely artificial and hypothetical issue.

On that basis alone, the petition should be denied. In the alternative, if the petition 1s

granted, then the judgment should be affirmed on the merits based on this issue. United States

v. American Ry. Express Co., 265 U.S. at 435-36: see infra, p. 30.

Il. Conflict Of Interest Of Co-Defendant's Counsel Who Purported To Submit

Respondent's Sentencing In The Absence Of Respondent's Attorney

A second issue arising from the default of Mr. Delgado's trial counsel is the attempt

of a co-defendant's attorney to "stand in” at sentencing, purportedly on Mr. Delgado's behalf.

However, the "stand in" attorney didn't do anything for Mr. Delgado. She just purported to

submit his sentencing. The co-defendant's attorney then finished getting her client an

extraordinary result of probation over the prosecutor's strong objection. See supra, p. 7.

"Stand-in counsel" had a strong incentive not to rock the boat by getting a good result

for a co-defendant, because that would increase the possibility the prosecutor would become

fed up and pull out of the plea agreement, ruining her client’s extraordinary result. That

conflict, which should have been apparent to the trial court, see Delgado v. Lewis, 181 F.3d

at 1094, was reversible error. See Wood v. Georgia, 450 U.S. 261, 271-74 (1981).

Instead of dealing with the conflict, the trial court sought to bypass it. The court noted

Mr. Delgado's attorney was a no-show, and asked Mr. Delgado if the co-defendant's attorney

1]

had permission "to specially act as [his] attorney in place of Mr. Haynal for the purposes of

this judgment and sentence.” Mr. Delgado, through an interpreter, said yes. RT 29:2-12.

While conflict-free representation can be waived, any waiver of such a fundamental

right must meet the traditional standard of knowing, voluntary and intelligent. Johnson v.

Zerbst, 304 U.S. 458, 464 (1938). Every presumption is indulged against waiver of such

fundamental rights. Glasser v. United States, 315 U.S. at 70.

Therefore, a defendant must know the existence and nature of the right to conflict-free

counsel, know it can be exercised without undue burden, and understand the direct

consequences of waiving it. See, e.g., Henderson v. Morgan, 426 U.S. 637, 645 n.13 (1976);

Von Moltke v. Gillies, 332 U.S. 708, 723-24 (1948).

For these reasons, when a court knows or should know of a possible conflict, it must

determine that the defendant (1) has discussed the drawbacks of conflicted representation with

counsel; (2) has been made aware of the dangers and drawbacks of conflicted representation;

(3) knows of his right to conflict-free representation; and (4) voluntarily wishes to ioe it.

People v. Mroczko, 35 Cal.3d 86, 110, 197 Cal.Rptr. 52, 672 P.2d 835 (1983); Gray v.

Estelle, 616 F.2d 801, 803-804 (Sth Cir 1980). Routine inquiries uninformed by specific facts

do not suffice. Von Moltke v. Gillies, 332 U.S. at 723-24.

Here, the trial court made no such inquiry. Nor did it try to determine whether Mr.

Delgado was adequately informed of his rights. The record falls far short of the required

detailed inquiry. It provides no assurance Mr. Delgado understood the nature—or

existence—of his fundamental right to conflict-free counsel, or his right not to waive it.

12

Saetaaetaiearniiaiihitaaitaetetiiaidiiiniiaitaiaaiainiiael

Moreover, no one told Mr. Delgado that the purported "stand-in counsel” was going to do

absolutely nothing for him at sentencing, just like his trial attorney.

Respondent raised this issue as well in his Appellee's Brief in the Court of Appeals

(at 53-62). Like the denial of counsel issue, petitioners ignored the issue in their Reply Brief

in the Court of Appeals. Their failure to respond to the issue was a waiver. See supra, p. 3.

But waiver isn't necessary; the issue is clearly meritorious, and respondent is entitled to relief.

For this reason as well, the petition effectively asks for an advisory opinion. No matter

how the issues in the petition are eventually decided, whether in this case or any other case,

respondent will inevitably be entitled to his one sentencing with benefit of his own counsel.

The discussion supra, pp. 10-11, is incorporated here by reference.

On that basis alone, the petition should be denied. In the alternative, if the petition is

granted, then the judgment should be affirmed on the merits based on this issue. United States

v. American Ry. Express Co., 265 U.S. at 435-36; see infra, p. 30.

Ill. Failure Of Prior Appellate Counsel To Raise Either Of The Issues In I And II

Above

There is also the issue of ineffective assistance of prior appellate counsel in failing to

raise the denial of counsel and conflict of interest issues above.

These were hardly obscure issues. Denial of counsel, in particular, is one of the most

fundamental and easily spotted issues imaginable. Prior appellate counsel was patently

ineffective in failing to raise it. See Evitts v. Lucey, 469 U.S. 387, 396 (1985). Moreover,

there can be no tactical! basis for filing a brief (in any format) that raises no issues at all,

when such easily spotted and clearly meritorious issues are in the record. Prior counsel's

failure to raise these issues was prejudicial under the standards of Strickland v. Washington.

466 U.S. at 693-94, as the issues were meritorious, and any would have resulted in relief.

Respondent made this argument as an alternative ground for affirmance in the Court

of Appeals, in his Appellee's Brief (at 42-43). Petitioners failed to address it, or even mention

it, in their reply brief. That failure was a waiver of any opposition. See supra, p: 3.

There is no opposition that could be made anyway. What legal argument could there

possibly be, to overcome the law that guarantees respondent one sentencing with benefit of

counsel? The record makes clear respondent never got that, and petitioners have never claimed

otherwise. Prior appellate counsel could and should have raised the issue in a merits brief, and

was prejudicially ineffective in failing to do so.

For this reason as well, the petition effectively asks for an advisory opinion. No matter

how the issues in the petition are eventually decided, whether in this case or any other case,

respondent will inevitably be entitled to his one sentencing with benefit of his own counsel.

The discussion supra, pp. 10-11, is incorporated here by reference.

On that basis alone, the petition should be denied. In the alternative, if the petition is

granted, then the judgment should be affirmed on the merits based on this issue. United States

v. American Ry. Express Co., 265 U.S. at 435-36; see infra, p. 30.

14

NEADS ~RRRECT SeeNescRi CS, 6 REN SRE SIC nr ee RIE Reb LON ATA BERRIES LTS ES AARNE OLE AR EIR Ne RN Yo EI

ee ee

IV. Response To Petitioners' Claims

A. — Merits

If this Court were to reach petitioners’ claims, they have no merit.

To begin with, though it shouldn't matter (since the only issue in this Part should be

the propriety of a brief without any advocacy), petitioners make various claims about what

California courts require in no-merit briefs, wrongly dubbing their theory "California's Wende

procedure." The petition then claims that the Court of Appeals disagreed with California law.

While this Court doesn't decide what state law is, since petitioners made the claims,

respondent is obligated to answer: Both claims are patently in error. The California Supreme

Court follows Anders and Penson. So did the District Court, and so did the Court of Appeals.

Petitioners claim that in People v. Wende, 25 Cal.3d 436, the California Supreme Court

required a procedure contrary to Anders v. California, by which appouwted appellate counsel

who file a "no-merit brief" set forth only statement of procedure and evidence, and make no

effort to provide any advocacy or analysis or to set forth sported legal issues. Petn. at 11.

[stating that Wende prohibits what Anders requires, appellate counsel "draw[ing] attention to

‘anything in the record that might arguably support the appeal'"]. This is what petitioners call

"California's Wende procedure" or a "Wende brief." Petn. at 5, 6, 7, 11, 12, 14, 15, 16, etc.

The California Supreme Court has no such "procedure," and never has. On the issue

of whether appointed counsel filing a no-merit brief must engage in advocacy by setting forth

legal issues or analysis for the Court, the Wende case merely followed Anders. Wende, 25

Cal.3d at 439-41 [describing and following Anders]; accord In re Sade C., 13 Cal.4th at 980

[on issues of advocacy of counsel and contents of a no-merit brief, Wende required that "all

the steps required by Anders had to be taken"); Sade C., 13 Cal.4th at 981 [quoting Anders]

["[Wende] stay[ed] squarely in Anders’ path, seeking to ensure that ‘counsel acts in the role

of an active advocate in behalf of his client.'"]; see generally Sade C., 13 Cal.4th at 977-78

[discussing requirements of Anders favorably, as the law]; Sade C., 13 Cal.4th at 979

[discussing an earlier California case {People v. Feggans, 67 Cal.2d 444, 62 Cal.Rptr. 419,

432 P.2d 21 (1967)}, which required a no-merit brief to discuss the law, as "a sound reading

of Anders"). Nor did People v. Wende state, require, or even permit what petitioners claim.

In particular, it is untrue that in Wende or anywhere else, "the California Supreme

Court{] conclu[ded] that Anders does not obligate counsel to identify issues." Petn. at 12.

Notably, petitioners never state what part of Wende or what other California Supreme Court

opinion supposedly contains this holding. None exists.

If this Court had any doubt, respondent would respectfully urge it to review Wende,

and especially, the state High Court's very recent opinicn in Sade C. which recounts the

history of that Court in Wende and related cases. What petitioners are claiming about the law

set forth by the California Supreme Court--without stating where or how--simply doesn't exist.

Moreover, the Court of Appeals below didn't hold that "Wende is contrary to Anders."

Petn. at 11. The procedure that the District Court held was contrary to Anders and Penson,

in the judgment affirmed by the Court of Appeals, is the procedure used by prior counsel in

this case. That is the procedure petitioners wrongly ascribe to Wende, by which appointed

counsel filing a no-merit brief recites some facts and procedure, but doesn't spot issues,

doesn't assist the reviewing court, and doesn't engage in advocacy. It is not a procedure which

the California Supreme Court has ever required or permitted, in Wende or anywhere else.

16

aenactong MR OR eg

But in the end it doesn't matter. For even if the state Supreme Court in Wende had

required or permitted such a procedure, it is still patently contrary to Anders and Penson.

Because prior appellate counsel in this case used a procedure contrary to Anders and Penson,

the District Court correctly granted the writ. That is also why the Court of Appeals affirmed.

Petitioners try to distinguish this case from Anders by claiming prior counsel in this

case did more than counsel in Anders, because counsel in this case also set forth "an extensive

statement of the procedural and historical facts." Petn. at 11. Actually, prior appellate counsel

here did virtually nothing, since he only recited some procedural history and historical facts,

albeit none of the historical facts favorable to his client {discussed further below).

Beyond that, petitioners’ claim is like trying to distinguish a black horse from a white

horse. Neither in Anders nor in this case did appellate counsel provide any legal advocacy.

Legal advocacy is a bedrock, fundamental requirement of the Sixth Amendment guarantee of

counsel. McCoy v. Court of Appeals, 486 U.S. 429, 435 (1988); Evitts v. Lucey, 469 U.S. at

394; United States v. Cronic, 466 U.S. at 654-56 & n.17; Anders v. California, 386 U.S. at

743. Reciting some facts and procedural history doesn't qualify.

Worse still in this case, prior appellate counsel didn't even bother to recite facts that

were favorable to the defendant. His recitation was of facts favorable to the prosecution. Facts

in mitigation cf sentence which would have been favorable to the defendant can be found in

footnote 1, supra p. 7. Some can also be found in the Court of Appeals opinion.

Most importantly, prior counsel's brief had no legal advocacy. Without legal advocacy,

there is no legal representation. A high school student could read a record of this nature, and

recite facts and procedure. But courts do not appoint teenagers to provide legal representation.

The task of a lawyer is far greater: It is zealous legal advocacy. In the context of a

"no-merit brief," legal advocacy may be the "strange form of advocacy" described in McCoy

v. Court of Appeals, 486 U.S. at 439 n.13, whereby counsel indicates that (s)he thinks an

appeals is frivolous and thus doesn't argue any legal issues (because counsel doesn't see any

issues to argue). But even if rather "strangely," counsel still engages in legal advocacy by

"draw[ing] attention to anything in the record that might support the appeal." Penson, 488

U.S. at 81; McCoy, 486 U.S. at 430, 440; Anders, 386 U.S. at 744.

Without advocacy, the adversarial system--the bedrock foundation of our system of

justice--disintegrates. United States v. Cronic, 466 U.S. at 656-57 ["[I]f the process loses its

character as a confrontation between adversaries, the constitutional guarantee is violated."];

Herring v. New York, 422 U.S. 853, 862 (1975) ["The very premise of our adversary system

of criminal justice is that partisan advocacy on both sides of a case will best promote the

ultimate objective that the guilty be convicted and the innocent go free."]. Thus, a no-merit

brief must contain advocacy of counsei.

Even petitioners backhandedly acknowledge the unshakable requirement that appointed

counsel must engage in advocacy. Petitioners quote this Court's Penson opinion: "[F]ailure

to file a brief ‘deprived the court of the assistance of an advocate in its own review of the

cold record on appeal.'" Petn. at 13 [emphasis added] [quoting Penson, 488 U.S. at 82 n.5].

Exactly: The reviewing court, and the judicial system, require advocacy. That is

respondent's eaten.

Similarly, petitioners quote this Court's opinions in Penson, 488 U.S. at 80, McCoy,

486 U.S. at 430, 440, and Anders, 386 U.S. at 744: "[C]ounsel (under Anders] . . . must

18

include . . . ‘a brief referring to anything in the record that might arguably support the

appeal.’” Petn. at 13 [emphasis added]. Exactly: That is the requirement of advocacy. again.

This Court has repeatedly required advocacy of appointed counsel--in Penson, in

Anders, in Ellis v. United States, 356 U.S. 674 (1958). and in plenty of other decisions. The

Disirict Court didn't make up that requirement just for this case, nor did the Court of Appeals

in affirming the District Court. Both courts followed this Court. So does the California

Supreme Court. By contrast, the required advocacy didn't exist in the no-merit brief in this

case. That is why the District Court granted relief, and why the Court of Appeals affirmed.

In a no-merit brief, advocacy in the form of an Anders brief fulfills two functions that

allow a court to ensure the proper and constitutional working of the adversarial system:

(1) Evidentiary: It permits the reviewing court to verify that despite the no-merit brief,

appellate counsel has reviewed the record carefully and has done his or her best to engage in

issue-spotting and analysis in the discharge of his or her duties; and

(2). Advisory: It helps guide the court in the discharge of its duty of reviewing the

record to verify counsel's conclusion that there are no arguable issues, so that the court can

protect the integrity of its proceedings, as well as its own appointment of counsel.”

See Penson v. Ohio, 488 U.S. at 81-82 [describing these "twin functions of the Anders brief").

These are functions which must be performed by the reviewing court, because

appointed counsel cannot unilaterally decide the defendant is not entitled to the benefit of

i

It also fulfills a third function, which is that forcing chunsel to put pen to paper often

makes counsel more careful, and forces him or her to think about the case. See Penson, 488

U.S. at &! n.4. That would have been useful here. If this case might have seemed to prior

counsel to have no issues at first look, a more careful look--including proper record

augmentation, as discussed below--would have revealed issues that were easy to find, and as

basic and fundamental as issues could be.

19

counsel for arguing issues. Anders, 386 U.S. at 742-43; Ellis, 358 U.S. at 674-75. Only the

court can decide that. But the court can only so decide when there are no arguable issues.

For the court to make that decision, it must determine for itself that there are no

arguable issues. That is the court's job, not counsel's. The court needs the advocacy of

appointed counsel to do so, because a court cannot fulfill its functions unless counsel fulfill

theirs. Even in a no-merit brief situation, we still have an adversarial system, which means

the court takes its guidance from the parties’ advocacy. Herring v. New York, 422 U.S. at 862.

Counsel cannot default on those duties of advocacy, just as the court can't default on its duties

of evaluation which are necessarily dependent on the advocacy of counsel.

If a court receives a no-merit brief like the one in this case, the adversarial system

breaks down, and the court cannot perform its essential functions. Rather, it becomes

appointed counsel who decides the defendant is not entitled to any advocacy. That is neither

the proper function of an attorney, nor an action Which would be taken by a zealous advocate.

In this case, prior appellate counsel failed to spot two easily recognizable issues, total

denial of counsel at sentencing, and conflict of interest of purported "stand-in counsel" at

sentencing. Those issues are discussed in Parts I and II above, pp. 10-13.

Petitioners, however, praise the "no-merit brief" of prior appellate counsel, and also

appear to say Mr. Delgado's pro. per. brief was a good substitute for a brief of counsel. Petn.

at 12 [2d full par.]. Notably, petitioners omit any mention of the overwhelmingly obvious and

basic legal issues prior counsel! missed. And of course, they omit any mention of the fact that

there is no advocacy in prior counsel's "no-merit brief." Petn. at A-49 - A-61 (App. G).

Petitioners also fail to mention that prior appellate counsel failed to discharge his duty

of obtaining a complete record with which to determine that there were no arguable issues.

Attached in Appendix C is a copy of a record augmentation motion filed by respondent's new

appointed counsel (after the reinstatement of the state appeal following the District Court's

grant of habeas), which requested the Court of Appeal to issue an order augmenting the

record with materials either required by California law or perceived as useful to the appeal.

The Court of Appeal granted the record augmentation motion in full--over the objection of

petitioners, no less. Copies of those documents are attached as Appendixes D and E.

Prior appellate counsel, by contrast, asked for no augmented records--even though

California law permitted, and in some cases required, that the record contain extra materials.

See Cal. R. Ct. 12, 33(a)-(b); see also People v. Barton, 21 Cal.3d 513, 519-20, 146 Cal. Rpt.

727, 579 P.2d 1043 (1978) (as much as preparing a proper brief, a duty of appellate counsel

is to request record augmentation or correction when the appellate record is incomplete). One

can hardly assume prior appellate counsel did his job when he engaged in no advocacy,

missed routine meritorious issues, and wholly failed to obtain a proper appellate record.”

Although Mr. Delgado got to file a pro. per. supplemental brief after prior appellate

counsel failed in his obligations, a pro. per. brief is not a substitute for the advocacy of

In Penson, Chief Justice Rehnquist's dissent stated that appointed counsel said he had

conscientiously reviewed the record, "and we have no reason to disbelieve him." Penson, 488

U.S. at 91 (Rehnquist, Ch. J., dissenting). While this was not the test adopted by this Court

in Penson, it is still worth noting that here, (prior) appointed counsel never said he

"conscientiously" reviewed the record; and if he had, we would have had reason to disbelieve

him. For in this case, appointed counsel failed to make any effort to obtain an augmented

record as permitted by California law, in order to obtain a full record for determining whether

there were any arguable issues. Despite this, prior counsel told his client that the appeal was

"simply worthless." ER 256.

21

—

counsel. This Court has recognized this from at least Powell v. Alabama, 287 U.S. 45. 69

(1932), and specifically recognized it for appeals in Evitts v. Lucey, 469 U.S. at 394.

Here, the state Court of Appeal did what is too easily done with pro. per. filings by

people with little education or language skills: The Court gave little heed to the supplemental

pro. per. brief, and didn't discuss any of it. The Court simply said it read the supplemental

brief, it found no arguable issues, and the judgment was affirmed. ER 226-28 (reprinted at

Petn. App. E, at A-45 - A-47). The state Court of Appeal may have found no arguable issues

after reading Mr. Delgado's pro. per. supplemental brief, but it had no advocacy of counsel

to guide it. That hardly vindicates respondent's fundamental right to counsel.

Petitioners claim Mr. Delgado received more from prior counsel than a conclusory

statement that the appeal had no merit and counsel wouldn't file a brief. Petn. at 19. That is

not true in any material sense, though it is true literally: Mr. Delgado also received advice that

his appeal was "simply worthless," ER 256, when the appeal had meritorious issues which

should have been easily spotted. Mr. Delgado also received the burden of having to make pro.

per. arguments without transcripts, which were not sent to him. See ER 358-59. It is also true

that Mr. Delgado received a rote recitation of procedure and facts from prior appellate

counsel, though no facts favorable to Mr. Delgado. See supra, p. 7, fn. 1. That does not

separate an unconstituuonal brief from a constitutional one.

Were there any doubt on that last score, respondent would refer this Court back to

Ellis v. United States, 356 U.S. 674, where the defendant received much more than Mr.

Delgado. It didn't matter: Because the brief in Ellis had no advocacy, it failed the minimum

standards for a no-merit brief. See Anders, 386 U.S. at 744-45. So did the no-merit brief here.

99

Nubia

Petitioners sound a false alarm about California having to "restructure its entire judicial

system" if California courts followed Anders, Petn. at 8. as the California Supreme Court

always has. There are no facts on the "structure of the California judicial system" in the

record of this case. A claim based on facts not in the record should be disregarded. Witters

v. Washington Dep't of Services for the Blind, 474 U.S. 481, 486 n.3 (1986).

Respondent suspects petitioners’ alarm is merely a recycled version of their theory of

what the California Supreme Court supposedly required in Wende. Respondent answers again:

Wende neither says nor implies what petitioners claim. On the issue of appointed counsel's

duties of advocacy, Wende directly follows Anders. See Sade C., 13 Cal.4th at 977-81. And

the California Supreme Court recently reiterated that it follows Anders on this issue of

advocacy, and has always done so. Sade C.. 13 Cal.4th at 980-81; see supra, pp. 15-16.*

Petitioners try to distinguish Penson on the ground that there were arguable issues in

Penson. Petn. at 18. That is no distinction. As respondent has repeatedly stated and petitioners

have never contested, this case has issues that are not only arguable, but clearly meritorious.

Beyond that, petitioners put the cart before the horse. If an appellate court mustdecide

whether there are arguable issues before determining whether a no-merit brief complies with

Anders, then Anders has no meaning. For a court to decide whether there are arguable issues,

it must decide what the law is in the legal areas relevant to those issues, and how that law

* Petitioners also try to broaden their self-created "conflict" or "split" by citing opinions

from two other states, Oregon and Arizona, which eschew Anders as petitioners claim

California supposedly does. Petn. at 14. Petitioners fail to mention that the California Supreme

Court has expressly rejected the Oregon opinion, holding the Oregon Supreme Court "erred"

by rejecting Anders and Anders’ requirement of advocacy. Jn re Sade C., 13 Cal.4th at 980

n.8 [rejecting State v. Balfour, 311 Or. 434, 814 P.2d 1069, 1079 (Ore. 1991)]. The Arizona

case is from an intermediate court, and a petition for review is pending (no doubt awaiting

this Court's opinion in Smith v. Robbins (U.S. No. 98-1037, cert. grd. March 8, 1999)).

23

A EE AS SE SE IR SI Wc STN OIE OM IE IIE NN i i: EDS RE TEE OD

relates to the record. If a court does that, it has done everything necessary to decide the

issues, sO it doesn't need Anders. But then it would still have to decide issues without

advocacy from the appellant's counsel, again defeating the working of the adversarial system.

The paradigm established by this Court is much simpler. A no-merit brief must

contain advocacy. But unlike a merits brief which contains advocacy by its very nature, a no-

merit brief could be written either with or without advocacy. The Anders/Penson requirements

ensure there is advocacy in a no-merit brief. They also help the reviewing court perform its

twin functions after receiving a no-merit brief: Evidentiary, to show the reviewing court that

counsel really was acting as an advocate even though counsel didn't engage in traditional

advocacy (by arguing the merits), and advisory, to point the court to factual and legal areas

which will help it in its review of the record, so the court can maximize the likelihood that

it has protected the integrity of the judicial process and the defendant's right to counsel.

As matters stood, Delgado's right to counsel on appeal was utterly trampled, after his

right to counsel at sentencing was trampled before it. Mr. Delgado didn't have the merits

argued, even though he had meritorious issues. Mr. Delgado didn't even get the benefit of the

minimum brief of an advocate. His prior appellate attorney also didn't request further record

portions to make an intelligent decision on what to brief or not to brief. His prior appellate

attorney didn't even bother to send him the transcripts. His prior appellate attorney thought

a case involving a total denial of counsel had an appeal that was "simply worthless."

The only thing that was worthless was prior appellate counsel's brief. It contained no

advocacy, it did respondent no good, and it did the reviewing court no good. By any

standards, it flunked the minimum advocacy required by this Court and the Constitution.

B. Petitioners’ AEDPA Claims

iat Accel

: |

Apparently seeking to invoke the AEDPA, petitioners also claim that their erroneous

view of California Supreme Court caselaw in other cases is not contrary to or an unreasonable

application of this Court's law. Petn. at 12-13. As discussed above, petitioners are simply

wrong about what California Supreme Court caselaw really says. .

Beyond that, the AEDPA, 28 U.S.C. § 2254(d), doesn't have anything to do with what

happened in other cases. It deals with whether the state court's ruling in this case is contrary

to, or an unreasonable application of, clearly established law set forth by this Court.

In this case, on the one issue decided by the District Court and the Court of Appeals,

the only relevant state court ruling was the state Supreme Court's postcard denial of

respondent's habeas corpus petition alleging ineffective assistance of appellate counsel. No one

-can know what reasons or criteria the state Supreme Court used to deny the petition. The

denial may well have been because the state Supreme Court has very selective criteria for

review and this case didn't fit any. See Cal. R. Ct. 29.

Because there is no way to know what reasons or criterfa the state Supreme Court used

to deny the petition, there are no findings or conclusions below to which a federal court might

give deference under the AEDPA. A court cannot defer to something that doesn't exist. The

same is true on the denial of counsel and other issues not reached by the Court of Appeals

below: The state Supreme Court's denial of review was summary, none of petitioner's issues

were presented with benefit of counsel, and the state Court of Appeal gave no indication it

engaged in full adversarial adjudication of any issues on the merits.

In making their various AEDPA arguments, petitioners also claim there is a distinction

between this case and Penson, on the ground that appointed counsel sought to withdraw in

Penson, but didn't do so here. Petn. at 16-18.

25

“tease vem A SPY A i RR NA RR CE

If that is a distinction, it is one without a difference. An attorney who engages in no

advocacy, whether or not (s)he moves to withdraw, provides the same amount of advocacy:

None. Neither course satisfies any constitutional requirement. “That a person who happens

to be a lawyer is present at trial alongside the accused .. . is not enough to satisfy the

constitutional command.” Strickland v. Washington, 466 U.S. at 685. “The Constitution's

guarantee of assistance of counsel cannot be satisfied by mere formal appointment.” United

States v. Cronic, 466 U.S. at 654-55 [citation omitted]. p

The Court of Appeals was correct in holding that a summary denial with no reasons

given is not entitled to deference under the AEDPA, because there was nothing to which to

“defer.” The only “opinion” was the state Supreme Court's summary denial of Mr. Delgado's

habeas corpus petition, which stated no reasons. There was still no opinion to which to defer.

And even if the summary denial with no reasons was entitled to “deference,” "deference"

doesn't mean "abdication." A federal court would still grant relief where, as here, the state

court Opinion was patently incorrect based on clearly established law of this Court.

Even if one were to consider the direct appeal, the result would be the same. The state

Supreme Court summarily denied review with no reasons given. Previously, the state Court

of Appeal issued an opinion summarily affirming, with no factual findings or legal

conclusions, in a posture where the defendant had no advocacy of counsel (and didn't even

have his transcripts). A felony proceeding without benefit of counsel is void. Burgett v. Texas,

389 U.S. 109, 115 (1967). Again, there simply is nothing to which to defer.

Petitioners, however, summon up the words “independent review" in the Court of

Appeals’ opinion, as if they meant the Court of Appeals had made up its own law, rather than

following the AEDPA's edict that lower courts must follow "clearly established Federal law,

as determined by the Supreme Court of the United States." Petn. at 19-20. They didn't. The

District Court and the Court of Appeals used exactly the source of law the AEDPA requires,

this Court's clearly established opinions such as Anders and Penson.

Petitioners also distuss the original opinion that was expressly withdrawn by the Court

of Appeals, and terminology used in that opinion, as if a withdrawn opinion could have some

sort of significance. See Petn. at 20. It has none. It is withdrawn, and is thus in no way the

ruling of the Court of Appeals. See, e.g., Gelfuso v. Bell, 590 F.2d 754, 755 (9th Cir. 1978)

[upon withdrawal, opinion becomes a nullity]. The discessinn is thus inappropriate.

It has no merit anyway. In the context of the only opinion that exists (the June 23

opinion), "independent alae" only means what the Court of Appeals held: When the state

court has not engaged in adversarial adjudication and thus has not made any findings or

conclusions, a federal court has nothing to which to defer. In that event, it decides for itself--

i.e., independently--whether the state decision was contrary to or an unreasonable application

of clearly established law of this Court. See Delgado v. Lewis, 181 F.3d at 1091 & n.3.

Petitioners claim some sort of conflict on an issue of whether a state court opinion

requires reasoning to warrant deference under the AEDPA. See Petn. at 21-24. That is a non-

issue in this case, and it is based on a mischaracterizion of caselaw.

None of the cases petitioners cite for the "conflict," Petn. 21 [last partial par.]-22 [top

partial par.], stand for what they claim. In Hollman v. Wilson, 158 F.3d 177, 180 n.3 (3d Cir.

1998) (cited in Petn. at 21-22), the state court held an evidentiary hearing on the relevant

claim, then rejected it based on specific conclusions. That doesn't implicate petitioners’ issue.

Parker v. Angelone, 959 F.Supp. 319, 322-323 (E.D. Va. 1997) and McLee vy.

Angelone, 967 F.Supp. 152, 156-57 (E.D. Va. 1997) (cited in Petn. at 22), both of which had

at least some ruling on the merits that didn't exist here, have been overruled on this point by

the Fourth Circuit, which governs the Eastern District of Virginia. Cardwell v. Greene, 152

F.3d 331, 339 (4th Cir.) [cited with approval in Delgado v. Lewis, 181 F.3d at 1091], cert.

denied, 67 U.S.L.W. 3374 (U.S. Dec. 3, 1998); accord Wilson v. Moore, 178 F.3d 266, 280-

81 (4th Cir. 1999) (following Cardwell). Again, neither of these opinions creates a conflict.

Indeed, the Fourth Circuit's holding in Cardwell fully supports respondent: "[B]Jecause

the state court decision fails to articulate any rationale for its adverse determination of

Cardwell's claim, we cannot review that court's application of ‘clearly established federal law,’

but must independently ascertain whether the record reveals a violation of Cardwell's Sixth

Amendment right to the effective assistance of counsel." 152 F.3d at 339.

Petitioners’ other cases are clearly irrelevant here. Herbert v. Billy, 160 F.3d 1131,

1135 (6th Cir. 1998), cited in Petn. at 22, involves the different issue of what source of law

is used in a federal court's sedteaiieed review. It is self-evident that only clearly established law

of this Court may be used. The District Court and Court of Appeals did so here, as Anders,

Penson, and other relevant opinions have long been clearly established by this Court. And

Hennon vy. Ceaper, 109 F.3d 330, 335 (7th Cir. 1997), cited in Petn. at 22, involved review

of a claim specifically discussed by a state court in a written opinion, with no indication the

defendant was denied his right to an advocate. That has nothing to do with this case.

In short, there is no conflict among the courts on the "issue" proffered by petitioners.

But none of this should matter here anyway. The only issue here is what if any effect 28

U.S.C. section 2254(d) has on this case. Section 2254(d) states in pertinent part:

An application for a writ of habeas corpus on behalf of a person

in custody pursuant to the judgment of a State court shall not be granted

with respect to any claim that was adjudicated on the merits in State

court proceedings unless the adjudication of the claim--

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State

court proceeding.

On the one issue decided by the District Court and the Court of Appeals, the state

court decision not to grant relief was "contrary to . .. clearly established Federal law, as

determined by [this Court]." The "clearly established federal law, as determined by [this

Court]" was Anders, decided in 1967, and Penson, decided in 1988. That mandates relief.°

As to the issues not decided in the Court of Appeals opinion, the denial of counsel,

conflict of interest and ineffective assistance of appellate counsel issues discussed in Parts I-

III above, the result is the same, and petitioners have never argued otherwise. Strickland v.

* The "unreasonable application of clearly established law of [this Court]" prong of

section 2254(d)(1) doesn't apply, because there is nothing to show that the state court decision

ever tried to "apply" the law of this Court. Something cannot be an unreasonable “application”

if there was no "application" in the first place. Moreover, since the word separating the two

clauses of section 2254(d)(1) is “or" and not "and," only one of those two clauses needs to

be satisfied for the writ to issue. Here, the “contrary to" clause is satisfied. However, even if

one were to use the “unreasonable application" clause, the result would be the same: Prior

appellate counsel's brief violated the clearly established law of cases such as Anders, Penson

and Ellis. Had the state court believed otherwise, the belief would have been unreasonable.

The requirements of this Court's prior cases (Anders, Penson, Ellis, etc.) are clear, and prior

appellate counsel's brief obviously didn't meet them.

29

Washington, United States v. Cronic, Evitts v. Lucey and like cases have long been the law

clearly established by this Court. The violations described above are patently contrary to it.

With abdication of counsel at sentencing, and again on appeal, this case is as egregious

an example of constitutional violations as there could be. If the AEDPA barred relief in this

very extreme case, then it would seem no state case could result in federal habeas relief. That

is probably impossible. See U.S. Const., Art. 1, § 9, cl. 2 [Suspension Clause]; Harris v.

Nelson, 394 U.S. 286, 290-91 (1969). It is certainly not what Congress did in the AEDPA.

SEPARATE GROUNDS FOR AFFIRMANCE

If the petition were to be granted, then respondent asks this Court also to consider the

issues in Parts I, II and III above, as separate grounds for affirmance. A respondent is entitled

to make such a request without a cross-petition. Reno v. Flores, 507 U.S. 292, 300 n.3 (1993);

United States v. Arthur Young & Co., 465 U.S. 805, 814 n.12 (1984); Washington v.

Confederated Bands and Tribes of the Yakima Indian Nation, 439 U.S. 463, 476 n. 20 (1979).

A respondent may support the judgment on any grounds, whether or not decided below. Jbid.;

see generally United States v. American Bape Ry. Co., 265 U.S. 425, 435 (1924).

These are the same issues respondent raised as alternative grounds for affirmance in

the Court of Appeals. See Appellee's Br. 41-63. He does so again here. Respondent asks this

Court to affirm on these grounds, for the scune in this answer. Supra, Parts I, II and III.

Dated: - October 17, 1999.

Respectfully submitted,

i i hat

Michdel B. Dashjian —

Counsel of Record for the Respondent

30

Transcript Excerpts Of Respondent's Sentencing

(See Answer To Petition, p. 2)

lied § sale aera

wee eee e+

"2

Perrin orercseontess AION COIL IONE TN SNELL SE MIE EIT SNELL NS

An Nn & WwW ND

43

MR. MORRIS: Your Honor, Mr. Cuevas has also

indicated to me he is requesting that he be ordered

transferred immediately to state prison.

THE COURT: I'll order his transportation forthwith

to California State Prison.

MR. MORRIS: Thank you.

THE COURT: Thank you very much.

DEFENDANT JUAN CUEVAS: Thank you, your Honor.

THE COURT: Let's see. It's 12 noon right now,

counsel. I know that Mr. Vodnoy has an obligation in

another court at-1:30 in Los Angeles; is that correct,

sir? |

MR. VODNOY: Yes, your Honor -- West Covina.

MR. CURRIE: I do also, your Honor, at 1:30 Pomona

court.

THE COURT: All right. So that's Enrique Galvan,

is that correct?

MR. CURRIE: Yes.

THE COURT: You have a jury trial also?

MR. WAITMAN: Department 8 at 10:30.

THE COURT: , At 10:30, yeah.

Well, will the staff mind if we stayed here

for a while? All right, we will keep going.

In the matter of Jesus Garcia Delgado.

MS. BRZUSKA: Yes, your Honor. I'm appearing.

THE COURT: You're appearing on behalf of Mr.

Haynal?

MS. BRZUSKA: Yes.

LINDA A. MEEKINS, C.S.R.

ER 157

44

1 THE COURT: The Court has before it the

2 probation,-- the weekly report prepared and filed by the

3 | probation office that I've read and considered. I've

4 received no other documentation in connection with this

S case. Let me give you an indicated sentence to -- the

6 | Court in this case would -- is thinking 15 years, which

7 is the limit of the plea agreement we reached

8 previously. You may respond to that if you desire.

9 MS. BRZUSKA: Your Honor, I'm just going to submit

10 it on basically the Court's judgment as to exactly how

11 | much time Mr. Delgado should get.

12 THE COURT: All right. Mr. Hidalgo, any comments?

13 MR. HIDALGO: I think I've said enough already.

14 THE COURT: All right. In this matter, the Court

0) 15 | will make the following findings: A motor vehicle was

16 not involved. The defendant does not have the ability

17 to reimburse the county for court-appointed counsel fees

18 or investigation costs or other fees. I will order a

19 $1,000 restitution fine. That will be imposed.

20 The Court finds in this case that the facts

|

|

|

|

21 in aggravation outweigh those in mitigation. Mr.

22 Delgado, though not "Mr. Big," is, in the Court's

23 view -- has been identified, I think, in the probation

24 report as the subchief of this operation. That is my

25 belief as well. At the age of 45, this man, though

26 | without prior criminal record, was deeply invested in

27 this operation. The manner in which this operation was

"a 28 carried out indicates prior planning. It indicates

LINDA A. MEEKINS, C.S.R.

ER 158

: 45

sophistication. And Mr. Delgado admitted to playing a

role in the precursors to finished meth oil.

The crime involves a great quantity of

contraband, 35 pounds of finished methamphetamine,

seized under the search warrant. The only mitigating

factor is the fact that he had no prior criminal

record.

The Court will, therefore, sentence the

defendant pursuant to our agreement as follows: On

Count 1, the manufacturing of methamphetamine, violation

of Section 11379.6(a) of the Health and Safety Code, the

middle term of five years. With the enhancement of

exceeding 400 liters, 105 gallons by volume, violation

11370.4 <=

MR. HIDALGO: That's incorrect.

THE COURT: Strike that. It's the 10-year

enhancement. It is the enhancement of a substance

exceeding 25 gallons, Section 11379.8, of 10 years on

Count 1. On Count 2, the possession of Ephedrine with

intent to manufacture, violation of Health and Safety

Code Section 11383, the middle term of four years to be

served concurrent to that time served in Count 1. On

Count 3, possession of methamphetamine for sale,

violation of Section 11378 of the Health and Safety

Code, the middle term of two years, to be served

concurrent with time required to be served in Counts-2

and 1.

So total time -- we had the enhancement of

LINDA A. MEEKINS, C.S.R.

ER 159

46

1 manufacturing of 105 gallons in Count 1. That's to be

2 stricken, ,and that will be stricken. We agree that that

3 was an iapreper allegation as to Count 1; is that

4 correct?

5 MR. HIDALGO: Yes.

6 THE COURT: All right. That will be stricken. The

7 other enhancements -- you alleged enhancements in Counts

8 3 as well; is that correct?

9 MR. HIDALGO: Yes.

10 THE COURT: Those enhancements, pursuant to Penal

11 Code Section 11370.1, will be stayed pending the

12 successful completion of the sentence agreed upon in

13 this court and now imposed upon the defen#ant. And upon

14 the successful completion of those sentences, those will

15 be permanent stays. .

16 That should do it. Is there anything else in

17 relation to Mr. Delgado?

18 MR. HIDALGO: I believe that is it, your Honor.

19 THE COURT: Mr. Delgado, good luck to you, sir.

20 DEFENDANT DELGADO: Thank you.

21 THE COURT: The credits are the same as the

22 codefendants. 230 actual, 115 good conduct, for total *

23 | of 345 credits for time served.

24 MR. HIDALGO: To be followed by n parted of parole.

25 THE COURT: To be followed by three to four years

26 prison parole. Yes. Thank you.

27 |. In the matter of Carlos Angino. Mr. Vodnoy.

= 28 MR. VODNOY: Yes, your Honor.

LINDA A. MEEKINS, C.S.R.

ER 160

A

¢

?

c

%

5

THE COURT: Mr. Vodnoy, it's difficult to say,

based upon the statements of all these defendants, who's

who and what's what with regard to this lab. There's a

lot of finger pointing with one exception, and that was

Jesus Reiente. He is the one guy that did assume

responsibility. That's the one man who in some ways

said it like it was.

Appendix B

Statement Of Petitioners' Counsel

National Law Journal, March 22, 1999

(See Answer To Petition, p. 1)

Monday, March 22, 1999

"Wende’

eS ae

@ .

Fed. judge -

blasts Calif.

defense pair

But even the government

says 9th Cir. got it wrong.

By Davip E. ROVELLA

NATIONAL LAW JOURNAL STAFF REPORTER

THE FIERY DENUNCIATION of two Cali-

fornia lawyers by a federal appeals court

has spurred an unlikely alliance between

& prosecutor and two defense lawyers

against a federal judge and a convicted

methamphetamine manufacturer.

In a Feb. 23 ruling affirming the grant-

ing of Jesus G. Delgado’s habeas petition,

Judge Sidney R. Thomas, of the U.S.

Court of Appeals for the 9th Circuit, said

that the “absence of any meaningful lega!

assistance” by court-appointed trial law-

yer Andrew J. Haynal, of Redlands, Calif.,

and appellate counsel Christopher J.

Blake, of San Diego, “makes a mockery of

the representation of indigent defendants

contemplated by the Supreme Court.”

He railed against Mr. Haynal’s ab-

sence from most of Mr. Delgado’s court

appearances after the defendant's 1994

arrest, leaving his client in the hands of

other lawyers, whose clients had con-

flicting interests. The judge blasted Mr.

Blake's failure to base Mr. Delgado’s ap-

peal on ineffective assistance of counsel,

noting acidly that while one of the five

co-defendants who plead guilty received

probation, Mr. Delgado, with no lawyer

at his sentencing and no criminal record,

<teceived the maximum 15 years. The

judge concluded that to turn down Mr.

Delgado's petition would “render the

clear sound of Gideon's trumpet quiet

and meaningless as wind in dry grass.”

‘chee 8 US & 4

a? hg . °

.

California Deputy Attorney General

Sabrina Y. Lane, who filed a petition for

rehearing en banc, calmly dismissed the

opinion’s hyperbole while coming to the

defense of Messrs. Haynal and Blake.

“Having somebody stand in is very

common in the trial courts, certainly in

the context of a preliminary hearing and

sentence,” she said. As for Mr. Blake, she

added that “he did exactly what he

should have done under California's

Wende procedure. In fact, the defendant

received a higher level of review than if

{Mr. Blake} had raised a single question.

Under People v. Wende, explained Mr.

Blake, if a defendant appeals but there

are no nonfrivolous grounds, a lawyer in

California can leave it.to the state ap-

peals court to make an independent re-

view of the facts. Mr. Blake countered

Judge Thomas’ admonitions by saying

that the ee eee

issue is usually raised in a as peti-

tion, as it was in this case, and that by

following Wende, he allowed the state

appeals court.to look at any issue it

thought pertinent. “The 9th Circuit made

no attempt to educate itself as to what

the Wende procedures are,” said Mr.

Blake. Mr. Haynal did not return calls.

But Mr. Delgado’s current lawyer,

Michael B. Dashjian, of Solvang, Calif.

said that Mr. Haynal’s absences and Mr.

Blake's failure:to raise the:ineffective-as-

sistance-of-counsel issue-resulted in his

client going without effective representa-

tion for “a:good three years." 28) Shs <6

~

Respondent's Motion To Augment The Record

In The State Court Of Appeal After Grant Of Habeas

(See Answer To Petition, pp. 8, 21)

Appendix C

MICHAEL B. DASHJIAN

State Bar No. 111072

LAW OFFICES OF MICHAEL B. DASHJIAN

606 Alamo Pintado Rd. Suite 119

Solvang CA 93463

(805) 686-0700

Attorney for Appellant

Jesus Delgado

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT, DIVISION TWO

PEOPLE OF THE STATE OF Court of Appeal

CALIFORNIA, No. E016476

Plaintiff and Respondent,

(San Bernardino County

Vv. No. FSB 05856)

JESUS DELGADO,

Defendant and Appellant

APPLICATION TO AUGMENT THE RECORD ON APPEAL

AND FOR EXTENSION OF TIME

TO THE HONORABLE MANUEL RAMIREZ, PRESIDING

JUSTICE, AND TO THE HONORABLE ASSOCIATE JUSTICES OF THE

COURT OF APPEAL OF THE STATE OF CALIFORNIA, FOURTH

APPELLATE DISTRICT, DIVISION TWO:

Pursuant to Cal. R. Ct. 12(a), appellant Jesus Delgado, through his

undersigned counsel, respectfully requests that this Court augment the

record to include the materials below.

This is an appeal from a judgment of conviction based on a plea of

guilty, as part of a six-defendant plea agreement, to one count of

manufacture of methamphetamine, in violation of Health and Safety Code

section 11379.6, one count of possession of chemicals with intent to

i : PRY

|e abet lane sess a cmt ana meme ue PEC

manufacture, in violation of section 11383; and one count of possession of

methamphetamine with intent to sell, in violation of section 11378, with

weight enhancements under sections 11379.8 and 11370.4, subdivision (b).

Appellant was sentenced to a term of 15 years.

In appellant's original appeal, a brief was filed by (former) appellate

counsel pursuant to People v. Wende (1979) 25 Cal.3d 436, and a

supplemental brief was filed by appellant pro. per. This Court affirmed the

judgment on December 18, 1995. (Aug. CT 2.) After the Supreme Court's

denial of appellant's petition for review, the remittitur issued in this Court

on March 19, 1996. (Aug. CT 1.)

Subsequently, on July 2, 1997, appellant's petition for a writ of

habeas corpus to the U.S. District Court for the Central District of

California was conditionally granted based on a finding of ineffective

assistance of counsel, subject to the reinstatement of appellant's appeal.

(Deglado v. Lewis [No. CV-96-7241-R (RNB)] [copy of orders and ruling

in Court of Appeal file].) Based on the U.S. District Court's order, this

Court reinstated the appeal, and appointed the undersigned as new counsel.

This appeal is the reinstatement of the appeal from the judgment.

Appellant remains under a sentence of 15 years, and is currently

incarcerated.

Because of the unusual posture of this appeal; in order to ensure all

potentially arguable issues on appeal have been evaluated; in order to ensure

appellant's Sixth Amendment right to effective assistance of counsel 1s

maintained in this appeal; and in order for current appellate counsel to fulfill

his Sixth Amendment duty of providing proper legal advice to his client

(since a successful effort to challenge a plea of guilty in this case could

subject appellant to a potentially higher sentence, see, e.g., People v. Aragon

(1994) 11 Cal.App.4th 749, 759-760, People v. Romanoski (1984) 157

Cal.App.3d 353, 363) [withdrawal of guilty plea waives double jeopardy

mma a a CR i a gest

protection against higher sentence on appeal]), appellant would respectfully

ask that the record be augmented as follows:’

A. Supplemental Clerk's Transcript

1. All certificates of probable cause to appeal, with

accompanying applications. The U.S. Magistrate's Recommended Ruling

refers to a request by trial counsel for a certificate of probable cause to

appeal, and a grant of the certificate of probable cause, on an issue which

appears to go to the voluntariness of appellant's plea. (Rec. Ruling filed

5/28/97, p. 16-17 & fn. 6.) The certificate would directly affect the issues

appellate counsel could raise on appeal, under Rule 31(d) and Penal Code

' In requesting this extensive set of materials for a case that was

originally disposed of by a Wende brief and no-issue ruling, appellant does

not make any argument concerning any prior action in this appeal or

whether any such action was inappropriate. (That would seem irrelevant

here, with the appeal having been reinstated.) Current appellate counsel is

operating with the benefit--and the burden--of the U.S. District Court's

ruling. The District Court has identified specific issues which it apparently

expects current appellate counsel to explore, so it is very easy for the

undersigned to follow the District Court's identification of issues, which is

a benefit that no one had in the prior appeal. However, the undersigned

counsel also feels he has no choice but to evaluate those issues, because of

the explicit nature of the District Court's ruling. That does not necessarily

mean these issues will end up being briefed on appeal. But if appellate

counsel ends up rejecting a potential issue identified by the District Court,

he would want to do so with a full understanding of what that issue would

have been and why it is appropriate to reject it.

It is also fairly clear that this appeal has the potential of being further

scrutinized by the District Court if the matter gets that far again. In that

light, appellate counsel would consider it prudent to err on the side of

caution and overinclusion in any event.

Because of the extensive nature of this request and the multi-

defendant nature of this case, appellate counsel would note here for the

benefit of the Superior Court Clerk's Office that he would extend his full

cooperation to that office in clarifying any items as to which the Clerk's

Office is unclear.

————————————————— eo

section 1237.5, and thus would be an important document in this appeal.

The application for the certificate would be important as well, in that it

would indicate an issue that trial counsel and the trial court found arguably

nonfrivolous, which appellate counsel would be required to evaluate.

The certificate of probable cause is part of the normal record on

appeal under Cal. R. Ct. 33(a)(1)(a).

2. All motions to suppress under Penal Code section 1538.5, and

other motions addressed to the search warrant, with supporting and opposing

papers. and any joinder by appellant's trial counsel. (Motion heard January

18, 1995.) The District Attorney stipulated to appellant's standing to join

these motions (CT 96); thus, the motions are deemed to have been made by

appellant.

As a result, all moving papers for the section 1538.5 and related

motions are part of the normal record on appeal under Cal. R. Ct.

33(a)(1)(J). There is a potential issue as to whether appellant waived his

right to appeal the denial of the section 1538.5 motion in conjunction with

his plea, which appellant may have to address, although there are also

potential issues as to whether appellant understood what he was waiving;

since as the US. District Court found in its Ruling, there are potential issues

as to the voluniariness of appellant's plea, as to which the trial court

apparently granted a certificate of probable cause. (Rec. Ruling at pp. 16-17

& fn. 6.) If there is an argument that such appeal was not waived, or that

the plea was involuntary, then appellant needs the section 1538.5 documents

in the record to be able to raise the issue on its merits.

Note: Other defendants’ moving papers may be found in the other

defendants’ files, apparently under the same Superior Court docket number

[though under different sub-numbers].

3. All motions to sever. disclose confidential informants or reveal

the contents of search warrants. and quash and traverse search warrants.

| ase imma mana a

—————————————

with supporting and opposing papers, and any joinder_ by appellant's

counsel. These were the other motions heard on the same day and at the

same time as the section 1538.5 motion, and are requested for the reasons

in Item (2) above.

4. All motions under Penal Code section 995, with supporting

and opposing papers, and any joinder by appellant's trial counsel. (Motion

heard January 13, 1995.) The minute order for that date states that appellant

joined in the other defendants' motions (CT 94); thus, the motions are

deemed to have been made by appellant. Asa result, all moving papers for

the section 995 motion are part of the normal record on appeal under Cal.

R. Ct. 33(a)(1)(). Appellate counsel also requests the papers in order to be

able to evaluate possible trial defenses, based on his need to advise his

client intelligently with respect to a possible challenge to his plea, since a

successful challenge to the plea could subject appellant to a higher sentence

if the case was eventually tried.

Note: Other defendants' moving papers may be found in the other

defendants’ files, apparently under the same Superior Court docket number

[though under different sub-numbers].

5. All statements in mitigation. statements in aggravation. and

other documents pertaining to sentencing as to appellant. If these documents

exist, they would be part of the normal record on appeal under Cal. R. Ct.

33(a)(1)() or part of the optional record on appeal under Cal. R. Ct.

33(b)(1). -

If the documents exist, they would also be necessary as part of an

issue on appeal that the U.S. District Court specifically raised in the

Recommended Ruling (adopted as the Court's final ruling), namely, trial

counsel's failure to appear on his client's behalf at sentencing, and his action

in turning his client over to a co-defendant's counsel who appeared to have

a conflict of interest. (See Rec. Ruling, pp. 15-16 & fn. 5.)

Le ee

—————————————————————————_—_—_—__——rlc eS ststi‘isOSCS

What type of presentation trial counsel made on his client's behalf for

sentencing purposes is an integral part of that issue, and any statements in

mitigation by appellant's trial counsel would directly affect that issue. Any

statements in aggravation by the People would be requested in order to

evaluate the issue fully. [Note: Statements in aggravation by the People

could possibly be found in other defendants' files, apparently under the same

Superior Court docket number, but under different sub-numbers. ]

If there were no statements in mitigation filed by trial counsel, the

nonexistence of such documents would also be highly relevant to any issue

dealing with trial counsel's failure to represent his client at sentencing. The

Superior Court clerk's affidavit stating that no such documents exist would

therefore be an important part of the appellate record as well.

6. All statements in mitigation. statements in aggravation, and

other documents (including letters) pertaining to sentencing as to defendant

Jose Cuevas Jr. (These documents are presumably in the sub-file under this

Superior Court docket number pertaining to Mr. Cuevas.)

These documents pertain to the same potential issue raised in the

Magistrate Judge's Recommended Ruling, which was adopted by Judge Real

as the basis for the U.S. District Court's conditional grant of habeas corpus.

The District Court noted that appellant's trial counsel did not appear

on his behalf at sentencing. Rather, a "special appearance" was made for

appellant at sentencing, by the trial attorney for defendant Jose Cuevas Jr.,

who made no argument and no statement in mitigation, and merely

submitted the case. The Recommended Ruling noted as part of this issue

that this co-defendant's attorney appeared to have a conflict of interest. (See

Rec. Ruling at pp. 15-16 & fn. 6.)

Based on appellate counsel's independent review of the record, it

does appear that co-defendant's counsel who appeared for appellant at

sentencing may in fact have had a conflict of interest. The plea agreement

———S_—_ — ee

was a package deal for all six defendants, which appeared to involve prison

sentences for each. However, co-defendant's counsel proposed a novel

sentencing arrangement for her client, by which her client would get

probation--even though the offense was presumably probation-ineligible--and

her client's father, also a co-defendant, would serve the prison time that his

son would have received had the plea agreement been carried out as

expected. The father agreed to serve his son's prison time, and was given a

higher sentence. Over the prosecutor's strenuous objection, the trial court

accepted that arrangement, and this co-defendant received probation.

Since co-defendant's counsel was fully aware that she was going to

seek this extraordinary arrangement for her client, her client's best interests

would have been that none of the other defendants received any unusual or

unexpected dispositions, to maximize the likelihood that the prosecutor

would not seek to undo the entire plea bargain. In other words, it was in co-

defendant's counsel's interest that none of the other defendants, including

appellant, "rock the boat."

Thus when co-defendant's counsel made her "special appearance" for

appellant, it was in her client's best interest that she say nothing at all on

appellant's behalf, because it was in her client's best interest that appellant

not receive a mitigated disposition. This raises a significant possibility that

trial counsel not only failed to perform his role as counsel for his client's

sentencing, but he turned his client's sentencing over to an attorney who had

a conflict of interest. These present a potential issue on appeal that appellate

counsel must explore in light of the U.S. District Court's ruling.

Because the above documents would shed light on whether and to

what extent co-defendant's counsel may have had a conflict of interest,

appellant respectfully requests that they be augmented into the record here.

The current Reporter's Transcript does indicate that such statements in

mitigation exist. (RT 67.)

B. Supplemental Reporter's Transcript

7. Reporter's transcript of proceedings, January 13, 1995.

(Proceedings before Hon. Patrick J. Morris, court reporter L. Meekins; see

Minute Order, Clerk's Transcript, p. 94.)

These are the oral proceedings on the section 995 motion. Appellant

requests that these be augmented into the record for the same reasons as set

forth in Item (4), above.

8. Reporter's transcript of proceedings, January 18. 1995.

(Proceedings before Hon. Patrick J. Morris, court reporter D. Alvino; see

Minute Order, Clerk's Transcript, pp. 95-96.)

These are the oral proceedings on the section 1538.5 and related

motions. Appellant requests that these be augmented into the record for the

same reasons as set forth in Items (2)-(3), above

9. Reporter's transcript of proceedings. February 24. 1995.

(Proceedings before Hon. Patrick J. Morris, court reporter L. Meekins, see

Minute Order, Clerk's Transcript, p. 98.)

One of the issues discussed in the federal District Court's ruling was

the voluntariness of appellant's plea, as to which, according to the District

Court's ruling, trial counsel applied for and the trial court granted a

Certificate of Probable Cause. (Rec. Ruling, pp. 16-17, fn. 6.) This transcript

would be directly relevant to that issue, because the minute order for that

date says: "Deft. rejects offer--if def. wishes to accept Atty to notify DA by

3-3-95." (CT 98.) The fact that defendant rejected a plea offer a few days

before his plea would be directly relevant to any issue pertaining to the

,voluntariness of appellant's plea. Accordingly, appellant would request the

transcript.

10. Reporter's transcript of proceedings, April 19, 1995.

(Proceedings before Hon. Patrick J. Morris, court reporter D. Alvino.) This

appears to have been a routine postplea continuance of proceedings for

essSsSssSsSe

sentencing. Because any proceeding after the plea may shed relevance on

the voluntariness of the plea, and to complete the record on any such

potential issue, appellant would respectfully ask that a transcript of this

proceeding be made available as well.

All of the materials above are requested in order to ensure appellate

counsel can properly discharge his Sixth Amendment duties to his client,

and that the defendant's right to a meaningful appeal is protected under the

Fourteenth Amendment.

tel Request for Extension of Time

Appellant respectfully requests that the time for filing the opening

brief be extended to 30 days after the filing of the supplemental record, in

order to ensure that appellate counsel has an adequate opportunity to review

these materials and incorporate them into the opening brief if appropriate,

and to counsel his client based on a review of the full record.

For these reasons, appellant would respectfully request that his

motion be granted, and that the time for filing the appellant's opening brief

be extended to 30 days after the filing of the supplemental record.

Dated: October 11, 1997.

Respectfully submitted,

' * 1 a a .

| i | ti

Michael B. Dashjian

Counsel for Appellant Jesus Delgado

(Appellate Defenders - Independent Case)

DECLARATION OF SERVICE BY MAIL

I, MICHAEL B. DASHIJIAN, declare as follows:

I am an active member of the State Bar of California, over the age

of 18 years and not a party to the within action. My business address 1s

606 Alamo Pintado Rd., Suite 119, Solvang, California 93463. On October

11, 1997, I served the attached Application to Augment the Record on

Appeal and for Extension of Time by placing a true copy thereof in an :

envelope addressed to the persons nained below at the address set out

immediately below each respective name, and by sealing and depositing said

envelope in the United States Mail, with postage thereon fully prepaid.

Office of the Attorney General

110 West A Street Suite 700

P.O. Box 85266

San Diego CA 92186-5266

Appellate Defenders, Inc.

233 A Street Suite 1200

San Diego CA 92101

Clerk of the Superior Court (Appeals Unit)

County of San Bernardino

351 N. Arrowhead Ave.

San Bernardino CA 9240]

A copy was also sent on this day to the appellant, Jesus Delgado.

I declare under penalty of perjury of the laws of the ‘State of

California that the foregoing is true and correct. Executed, at Solvang,

California on this 11th day of October, 1997... * , »

/. f

i a

MICHAEL B. DASHJIAN

10

Appendix D

Petitioners' Objection To Respondent's Motion To

Augment The Record In The State Court of Appeal

After Grant Of Habeas

(See Answer To Petition, p. 21)

DANIEL E. LUNGREN, Attorney General

of the State of California

GEORGE WILLIAMSON

Chief Assistant Attorney General

GARY W. SCHONS

Senior Assistant Attorney General

LAURA WHITCOMB HALGREN

Supervising Deputy Attorney General

SABRINA Y. LANE

Deputy Attorney General

State Bar No. 167819

P.O. Box 85266

110 West A Street, Suite 1100

San Diego, California 92186-9961

Telephone: (619) 645-2565

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT, DIVISION TWO

THE PEOPLE OF THE STATE OF CALIFORNIA, E016476

Plaintiff and Respondent, S.C. No. FSB 05856

Vv.

MICHAEL RAY FOSTER

Defendant and Appellant.

~~ eae aes ae we

OPPOSITION TO APPELLANT'S MOTION

TO AUGMENT THE RECORD ON APPEAL

TO THE HONORABLE MANUEL RAMIREZ, PRESIDING JUSTICE, AND

TO THE HONORABLE JUSTICES OF THE COURT OF APPEAL, FOURTH APPELLATE

DISTRICT, DIVISION Two:

Appellant requests that this Court augment the Clerk’s

Transcript on appeal to include the following: all certificates of

probable cause and accompanying applications, all motions to

suppress evidence and other motions relevant to the search warrant,

all motions to sever, disclose confidential informants or reveal

the contents of search warrants, and quash and traverse search

warrants, all motions under Penal Code section 995, and all

statements in mitigation, aggravation, and other documents

pertaining to sentencing for appellant and codefendant Jose Cuevas,

or. Appellant requests that this Court augment the Reporter’s

Transcript on appeal to include the following: the oral

proceedings on the Penal Code section 995 motion, the oral

proceedings on any motion to suppress evidence, any oral

proceedings regarding appellant’s rejection of the prosecution's

offer to plead guilty, and oral proceedings for a post-plea

continuance of sentencing.

Augmentation of the appellate record is available for

portions "of the original superior court file... ." (California

Rules of Court, rule 12.) In order to justify augmentation of the

record on appeal, a litigant must signify with some certainty how

materials not included in the normal transcript may be useful on

appeal. (People v. Gaston (1978) 20 Cal.3d 476, 482, citing People

v. Hill (1967) 67 Cal.2d 105, 124.)

Here, the Certificate of Probable Cause and application

are included in the Supplemental Clerk’s Transcript. (Supp. CT 1-

2.) Thus, there is no need for augmentation to include these

documents. Respondent does not oppose augmentation to include any

motions to suppress evidence. (See Cal. Rules of Court, rule

33(a) (1) (1).) Respondent does not oppose augmentation to include

any written motion made by the defendant, as those items are

regularly included in the Clerk’s Transcript. (See Cal. Rules of

ee Be er ee ee

Court, rule 33(a)(1)(1).) However, appellant fails to establish

how motions brought by coparticipants would be relevant to

appellant’s appeal. Thus, respondent opposes augmentation to

include written motions brought by coparticipdnts in which

appellant did not join. In light of the district court's ruling,

Respondent does ndét oppose augmentation to include statements in

aggravation or mitigation pertaining to appellant or codefendant

Cuevas, Jr.

Respondent opposes augmentation to include the oral

proceedings on the section 995 motion, as these proceedings are not

normally included in the Reporter’s Transcript, and appellant fails

to identify how the oral proceedings would be of assistance on

appeal. Furthermore, the section 995 motion occurred prior to the

guilty plea. Respondent does not oppose augmentation to include

the oral proceedings of any motion to suppress evidence that

appellant brought or joined. In. light of the district court’s

ruling, respondent does not oppose augmentation to include any oral

proceedings of appellant’s rejection of the prosecution’s offer to

plead guilty, or any oral proceedings of a continuance of the

sentencing hearing.

Based on the foregoing, respondent respectfully requests

that appellant’s request for augmentation be denied in part and

granted in part. |

DATED: October 17, 1997, San oe California.

pieythnd Ss

SABRINA\Y. LANE _

Deputy Attorney Ge Jyerat

SD95DA1130

DECLARATION OF SERVICE BY MAIL

Case Name: People v. Michael Ray Foster No. _E016476 _

I declare:

I am employed in the County of San Diego, California. I am over

18 years of age and not a party to the within entitled cause; my

business address is 110 West A Street, Suite 1100, P.O. Box

85266, San Diego, California 92186-5266.

On October 17, 1997 , I served the attached

OPPOSITION TO APPELLANT'S MOTION TO

AUGMENT THE RECORD ON APPEAL

in said cause, by placing a true copy thereof enclosed

by depositing it in the internal mail collection system at the

Office of the Attorney General, 110 West A Street, Suite 1100

P.O. Box 85266, San Diego, California 92186-5266, for deposit in

the United States Postal Service that same day in the ordinary

course of business, in a sealed envelope, postage fully postpaid,

addressed as follows:

Michael B. Dashjian (2 copies)

Attorney at Law

606 Alamo Pintado Rd., Suite 119

Solvang, CA 93463

Appellate Defenders, Inc.

233 A Street, Suite 1200

San Diego, California 92101

I caused a true and correct copy of the above document to be

deposited with (1) tne Clerk of the Court from which the appeal

was taken, to be delivered by said Clerk to the Judge who

presided at the trial of the cause in the lower court, and (2) a

copy to the District Attorney for the County of San Bernardino.

I declare under penalty of perjury the foregoing is true and

correct, and this declaration was executed at San Diego,

California, on October 17, 1997.

(Date)

Anna Herrera Re a) TM

(Typed Name) (Signature)

Appendix E

State Court of Appeal's Order Granting Respondent's

Motion To Augment The Record Afier Grant Of Habeas

(See Answer To Petition, p. 21)

COURT OF APPEAL -- STATE OF CALIFORNIA

FOURTH DISTRICT

DIVISION TWO

PEOPLE OF THE STATE OF CALIFORNIA, )

Plaintiff and Respondent, ) E016476

; )

v. ) (Super. Ct. No. FSB5856)

JESUS GARCIA DELGADO, )

Defendant and Appellant. be ) County of San Bernardino

)

THE COURT

This court has read and considered appellant’s motion filed October 14, 1997, to

augment the record on appeal, the respondent’s opposition to the motion, and the

appellant’s reply to the opposition. The court has determined that this entire request is

reasonable, based on appellant’s motion and reply and the decision of the federal court in

its writ of habeas corpus. The motion is GRANTED, and the superior court clerk is

DIRECTED to file with the clerk of this court, on or before 45 days following the date of

this order, supplemental clerk’s and reporter’s transcripts of the documents and oral

proceedings described in the motion, a copy of which is attached to this order. The

superior court clerk is also DIRECTED to notify the reporter or reporters of this order

within five days of its date and to furnish counsel of record with copies of the

augmentation.

Appellant is GRANTED an extension to serve and file the appellant's opening

brief on or before 30 days following the filing of the augmentation with this court.

RAMIREZ

Presiding Justice

cc: See attached list

CORY