Opinion
No. CS-97-364-EFS.
November 21, 2001
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
On October 17, 2001, the Court held an evidentiary hearing on Mr. Hart's Petition for Writ of Habeas Corpus. Mr. Hart appeared and was represented by Gerald Smith. The Respondent was represented by John J. Samson, Assistant Attorney General for the State of Washington. The Court previously denied the Petition. (Ct. Rec. 63). The Ninth Circuit granted Mr. Hart a certificate of appealability on the sole claim of whether trial counsel was ineffective for failing to file a direct appeal. The Ninth Circuit then vacated and remanded for reconsideration in light of Roe v. Flores-Ortega, 528 U.S. 470 (2000). (Ct. Rec. 71). The Flores-Ortega case clarifies factors to consider when a habeas petitioner claims ineffective assistance of trial counsel in failing to file an appeal, "a separate but antecedent question" from the performance inquiry in Strickland v. Washington, 466 U.S. 668 (1984). This Court ordered an evidentiary hearing, as the record was insufficient to permit review of the claim under Flores-Ortega standard. (Ct. Rec. 72). Mr. Hart alleges that his trial counsel was constitutionally deficient under this standard, and seeks reinstatement of his appeal from the Judgment entered in Spokane County Superior Court, Cause No. 94-1-01492-8.
On review of the evidence presented at hearing, for the reasons stated herein, the Court DENIES Mr. Hart's Petition.
I. FACTS
In 1994, in Grant County, Washington, Mr. Hart engaged in conduct of a sexual nature with his young daughter which resulted in criminal charges being filed against him in that county. Mr. Hart took several photographs during the commission of the Grant County crimes and had them developed a few days later in Spokane County. That conduct led to criminal charges being filed against him in Spokane County. He retained the law firm of John Cooney and Associates to represent him in both the Grant and Spokane County cases. On January 17, 1995, Mr. Hart pled guilty in Grant County Superior Court to child molestation in the first degree and sexual exploitation of a minor with sexual motivation in Washington. On March 6, 1995, he was sentenced in that county and had thirty days to file any appeal.
James Irwin, an associate at that law firm, handled the defense of the two cases with oversight by Mr. Cooney. Mr. Irwin had filed and argued various motions in both cases, and conferred with Mr. Hart prior to the entry of the two pleas. Both Mr. Irwin and Mr. Cooney appeared with Mr. Hart on March 15, 1995, in Spokane County Superior Court. On that day, Mr. Hart pled guilty to dealing in depictions of a minor engaged in sexually explicit conduct, and was sentenced to twenty-eight months to be served consecutively to the Grant County sentence, which had been imposed on March 5th, 1995. (Ct. Rec. 49, Ex. 22).
Although he was explicitly advised by the trial judge during the Spokane County plea colloquy that the court would decide whether or not to impose a concurrent or consecutive sentence if Hart entered a guilty plea, Mr. Hart was aggrieved by the imposition of a consecutive sentence, (Ct. Rec. 12, Ex. 1). Mr. Hart had thirty days from March 16, 1995 to file any appeal from the conviction and sentence in the Spokane County case. The thirty-day appeal period in both cases overlapped: in the Grant County case appeal time expired on April 5th; in the Spokane County case it expired on April 15th.
Mr. Irwin generally discussed both the pleas and potential appeals with Mr. Hart before the entry of pleas and sentences in both cases. In those discussions, Mr. Hart was advised of the amount of the attorney's fees for an appeal and responded that he would have to get back to Mr. Irwin after talking with his father. Mr. Irwin acknowledged that Mr. Cooney set both office policy and the amount of terms for representing clients. He did not believe there were grounds for appeal in the Spokane County case, but would have vigorously pursued an appeal if Mr. Hart had hired the law firm to do so. As to the Grant County case, post-sentencing motions were filed by the law firm and denied.
Mr. Robert Shuman was employed by Cooney and Associates as a paralegal. He had met with Mr. Hart on several occasions before the sentences in both cases, and on one occasion in the Spokane County jail after the sentencing in the Spokane case. During that post-sentencing visit, he advised Mr. Hart of the cost of an appeal and delivered papers related to the sentencing. Mr. Hart did not direct him to have Mr. Irwin, Mr. Cooney or the law firm file an appeal. Mr. Hart was aware through conversations with Mr. Cooney and Mr. Shuman, that Mr. Cooney did not believe there was a basis for an appeal in the Spokane County case. Mr. Cooney's opinion on the merits of an appeal are explicitly stated in letters to Mr. Hart.
Mr. Cooney, a lawyer since 1966 with a high volume criminal defense practice, told Mr. Hart while in court before the entry of the plea and sentencing in the Spokane case that, absent an abuse of discretion, there would be no basis for an appeal. In Spokane, Mr. Hart pled guilty without a plea agreement and was sentenced the same day. Mr. Cooney's letters to Mr. Hart following this sentencing do contain an invitation to call him collect. Mr. Cooney states convincingly that his law office has never declined a collect call from a client in jail. Mr. Cooney did not see Mr. Hart or receive a collect call from him after that. Mr. Hart did not direct him to file an appeal, therefore he filed none.
On March 17, 1995, the day after entry of Hart's plea and sentence in Spokane, Mr. Cooney sent him a letter, (Ct. Rec 37, Ex. 18), which Mr. Hart received on March 20, 1995, (Ct. Rec. 49, paragraph 16). That letter said in pertinent part:
In Spokane there appears to be very little to appeal since in as much as [sic] it is a discretionary call by Judge Murphy whether the sentences run concurrent or consecutive.
. . . If you do appeal Judge Murphy's decision, you would have 30 days from March 16, 1995 to do so, but unless he makes specific findings that only because of the "added victim of Heather" who developed the pictures was the major factor in going consecutive would you have much of a chance. An appeal wold cost approximately $3,000.00 and I suggest you and your family ration resources in other directions than an appeal.
Mr. Irwin and I will formally be withdrawing from your case at the end of next week both in Grant County and Spokane County thereby leaving you free to have the services of a Public Defender on either case if you do not hire us to appeal. By the time you receive this letter, which will be hand delivered to you in jail, your Father will also have received a copy. If you have any questions, please feel free to [call] either myself or Jim Irwin collect and your Father can do likewise.
I know it has been a tough time for you and your family and I will keep you in my prayers. Your prison time will come and go and you do have a lot of your life left ahead of you. I wish you the best of luck.
(Ct. Rec. 37, Ex. 18).
It is undisputed that Mr. Hart had a telephone conversation with Mr. Shuman, the paralegal for Mr. Cooney, on March 20th. Mr. Hart claims he told Mr. Shuman that he wanted to appeal; Mr. Cooney and Mr. Shuman claim that Mr. Hart never directed them to file appeal. Mr. Cooney remembers that he did not provide more information on contacting a public defender because he understood that Mr. Hart was going to retain other counsel to appeal. In response, counsel sent Mr. Hart another letter dated March 21, 1995 which said in pertinent part:
Pursuant to previous authorization, this correspondence is going out to you and your father. Pursuant to my previous letter, my previous discussion with you[r] father on this date, and with Mr. Shuman's discussion with you yesterday, we are withdrawing from both cases. Leaving you free to bring a Personal Restraint Petition, based on the Grant county matter, within a reasonable time, if you wish.
Judge Murphy's sentence will stand, unless you appeal. My suggestion in the previous letter still stands. As of this date, if you receive appropriate good time and credit for time served, you have approximately 6 years and 8 months to serve.
We are forwarding to you a copy of the Judgement and Sentence from Grant county and will send, as soon as we receive it a copy of the Spokane County Judgement and Sentence. . . .
(Ct. Rec. 37, Ex. 19).
Mr. Cooney had advised Mr. Hart against appealing the Spokane County judgment, explained the reasons why that appeal would be unsuccessful, stated his fee to act as attorney on appeal, referenced public defenders as an alternative to his representation, and twice notified Mr. Hart that he was withdrawing as his counsel in both the Grant County and Spokane County cases. In addition, this correspondence demonstrates that Mr. Cooney was aware of Mr. Hart's interest in filing an appeal in the Spokane case despite counsel's opinion that there was no basis for an appeal. Mr. Cooney remembers that he did not provide more information on contacting a public defender because he understood that Mr. Hart was going to retain other counsel to appeal. No appeal was filed in the Spokane case.
The perspectives of Mr. Cooney and Mr. Hart are not contradictory, and may be reconciled. While Mr. Cooney knew that Mr. Hart was interested in appealing against his advice, he believed that Mr. Hart was going to hire other counsel to pursue it, had received no instruction from Mr. Hart to file the appeal, and had withdrawn. In fact, well within the appeal period for both cases, Mr. Hart did retain Mr. Paul Wasson. Mr. Hart conferred by phone with Mr. Wasson, who advised him that he would do both appeals for Three Thousand Dollars. Mr. Hart and his father then retained Mr. Wasson to file the appeal in the Grant County case for One Thousand Five Hundred Dollars. On March 30, 1995, Mr. Paul Wasson executed a Notice of Appeal, and on April 3, 1995, timely filed the appeal in the Grant County case but filed no appeal in the Spokane County case. (Ct. Rec. 62, Ex. 23).
Claiming no assistance from Mr. Wasson in contacting a public defender to appeal the Spokane County case, Mr. Hart asserts that he tried to contact a public defender by using a "kite," a communication from a prisoner through a guard or jailer which would eventually be delivered to a public defender. However, before he could communicate with a public defender on the issue of appealing the Spokane County case, on March 30, 1995, he was sent to a prison intake center in Shelton, Washington, more than two hundred miles from Spokane. He was reportedly the target of threats, was placed on medications for his emotional reaction, and was in a special unit from which he was not released until April 21, 1995, some five days after the appeal period in the Spokane County case terminated. This history is given by Mr. Hart to explain why no appeal was filed in the Spokane County case. These facts comprise the totality of the circumstances regarding the issue before this Court.
II. LAW
Under clearly established federal law regarding claims of ineffective assistance of counsel,
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense.Strickland v. Washington, 466 U.S. 668, 687 (1984). Recently, the Supreme Court clarified the application of this standard in the context of claims that counsel was deficient in failing to file an appeal. See Roe v. Flores-Ortega, 528 U.S. 470 (2000)
The issues before this Court involve the determination of the two-prong Strickland test as applied by Flores-Ortega to the filing of an appeal in a criminal case: (1) whether Mr. Cooney provided deficient performance to Mr. Hart by failing to file an appeal of the Spokane County case for Mr. Hart; and (2) whether but for that ineffective assistance of counsel, Mr. Hart would have appealed.
For the first prong, to determine whether or not counsel's performance was deficient, the failure to file an appeal is not per se deficient. See Flores-Ortega, 470 U.S. at 478. Instead, trial counsel has a duty "to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing." Id. at 480. In assessing the conduct of counsel, the Court must "engage in a circumstance-specific reasonableness inquiry required by Strickland." Id. at 478. This requires the Court to focus "on the totality of the circumstances". Id. at 480. The fact that a defendant pled guilty is one important factor because it "reduces the scope of potentially appealable issues and because such a plea may indicate that the defendant seeks an end to judicial proceedings." Id. at 480.
In determining the second prong of the Strickland analysis in this context, the test is whether the defendant demonstrated, under the totality of the circumstances "that there is a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed." Id. at 484. If the defendant proves that "counsel's constitutionally deficient performance" deprived him "of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim entitling him to an appeal." Id. at 484.
III. ANALYSIS
A. Deficient Performance — Duty to Consult
The Court must look at the totality of the circumstances to determine what Mr. Hart's counsel knew about his interest in an appeal and therefore what his duty to Mr. Hart was. Flores-Ortega, 528 U.S. at 480. Mr. Hart pled guilty in Spokane without a plea agreement and went directly to sentencing during which he stated, "I had wanted to plead guilty seven moths ago." (Ct. Rec. 46, Ex. 22, at 26). The plea of guilty and this statement during sentencing are "highly relevant" factors in assessing the existence of and fulfillment of a duty to consult about appeal. Id. at 480. Both Mr. Irwin and Mr. Cooney had discussed potential issues for appeal before the pleas were entered in both cases. Mr. Cooney knew that Mr. Hart was interested in an appeal in the Spokane County case despite his advice, that he was not going to retain him for the appeal, and that he intended to retain the services of another attorney. Mr. Hart knew that his retained counsel, Mr. Cooney. saw no basis for appeal and also knew what his fee was if he wanted to retain Mr. Cooney to file the appeal in the Spokane County case. Mr. Hart knew of the option of seeking the services of a public defender. Mr. Hart knew of his right to appeal, as well as time within which he had to file the appeal. Mr. Hart did retain Mr. Wasson, who filed the Grant County appeal but not the Spokane County appeal. There was never a direction from Mr. Hart to Mr. Cooney or to him through his associate or his paralegal to file the appeal.
While a defendant does not have to demonstrate nonfrivolous grounds for appeal to prove either prong of Strickland, the presence of nonfrivolous grounds for appeal are relevant to a determination of either or both. Id. at 486. Here, no facts have been produced or legal argument made by Mr. Hart that his key grievance, Judge Murphy's imposition of a sentence twenty-eight months consecutive to the Grant County sentence, was improper under state law or that there were other nonfrivolous grounds for appeal. Further, the Commissioner's Ruling Denying Review in Washington State court, found that Mr. Hart had failed to "identify meritorious issues which counsel's advice prevented him from raising on appeal." (Ct. Rec. 12 Ex. 3)
The Court concludes that Mr. Cooney had a duty to consult with Mr. Hart about an appeal and that his actions satisfied that duty as articulated in Flores-Ortega. Accordingly, Mr. Hart has not proved that Mr. Cooney's actions were constitutionally deficient, the first prong of Strickland.
B. Prejudice — Flores-Ortega'a But For test
However, assuming in the alternative that Mr. Cooney's did not effectively assist Mr. Hart when he did not file an appeal in the Spokane County case, his withdrawal without filing the appeal did not deprive Mr. Hart of the opportunity to have that appeal filed. Mr. Hart chose not to pay the fee of Mr. Cooney, retained Mr. Wasson, filed an appeal in the Grant County case but not in the Spokane County case. Consequently, Mr. Hart has not proved the second prong of the Flores-Ortega inquiry: that but for the ineffective assistance of Mr. Cooney, he would have filed the appeal.
IV. CONCLUSION
Accordingly, the Court concludes as a matter of law that Mr. Hart has not been denied effective assistance of counsel entitling him to an appeal. Accordingly, the Court finds that the State Court's determination that counsel's failure to file an appeal did not violate Mr. Hart's right to effective assistance of counsel, was not an unreasonable application of clearly established federal law. See 28 U.S.C. § 2254(d)(1).
IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus, (Ct. Rec. 1), is DENIED. The District Court Executive is directed to enter this Order; provide copies to counsel; and Close the File.