Transcript

IN THE SUPREME COURT OF THE UNITED STATES

ERNEST C. ROE, WARDEN, Petitioner v. LUCIO FLORES-ORTEGA

No. 98-1441

November 1, 1999

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:05 a.m.

APPEARANCES:

PAUL E. O'CONNOR, ESQ., Deputy Attorney General, Sacramento, California; on behalf of the Petitioner.

EDWARD C. DuMONT, ESQ., Assistant to the Solicitor General, Department of Justice, on behalf of the United States, as amicus curiae, supporting the Petitioner.

QUIN DENVIR, ESQ., Federal Defender, Sacramento, California; on behalf of the Respondent.

PROCEEDINGS

(11:05 a.m.)

CHIEF JUSTICE REHNQUIST: We'll hear argument next in Number 98-1441, Ernest Roe v. Lucio Flores-Ortega.

Mr. O'Connor.

ORAL ARGUMENT OF PAUL E. O'CONNOR

ON BEHALF OF THE PETITIONER

MR. O'CONNOR: Thank you, Mr. Chief Justice, and may it please the Court:

We are here today because the Ninth Circuit has imposed on the State the per se rule of ineffective assistance of counsel where an attorney declines to file a notice of appeal and does not obtain a waiver of appeal --

QUESTION: I can't hear you. Could you maybe speak up or put the --

QUESTION: Maybe raise the lectern a little.

QUESTION: Crank up the thing.

QUESTION: No, you're cranking --

MR. O'CONNOR: Okay. Shall I start over?

QUESTION: Yes.

MR. O'CONNOR: Mr. Chief Justice --

QUESTION: Only if you want me to know what you were saying earlier.

(Laughter.)

MR. O'CONNOR: All right. Mr. Chief Justice, and may it please the Court:

We are here today because the Ninth Circuit has imposed on the State a per se rule of ineffective assistance of counsel where an attorney declines to file a notice of appeal and does not obtain a waiver of appeal rights. This rule applies even where a defendant has pleaded guilty, there has been no request for an appeal despite an appeal rights advisement, and there are no grounds for an appeal.

QUESTION: Well, isn't -- shouldn't you also add to your statement of fact that there has in fact been, I guess in this case, a naked plea, and the defendant's claim is that the defendant had been led to expect a sentence perhaps as low as 3-1/2 and instead got a sentence of 15, so that there's a -- at least is a potential claim that the sentence is too high, or in relation the defendant's expectations the plea would not have been entered under those circumstances that the defendant anticipated the sentence. Isn't that also something we should consider?

MR. O'CONNOR: Well, Your Honor, that's not an arguable issue, because the defendant was advised on the record at the plea hearing that he would receive a sentence of 15 years to life.

QUESTION: Before the plea was entered?

MR. O'CONNOR: Yes, Your Honor.

QUESTION: So -- I misunderstood this. So this, then, is a case, I guess exactly like a case in which the defendant has a plea agreement and the plea agreement is meticulously followed by the court.

MR. O'CONNOR: Yes, Your Honor.

QUESTION: I see.

MR. O'CONNOR: In addition, affirmance of the Ninth Circuit's rule --

QUESTION: You might show us where in the joint appendix that conversation occurred, if you would. Or maybe you can come back to it and your cocounsel can try to find it.

MR. O'CONNOR: Thank you.

In addition, affirmance would lead to habeas litigation concerning defaulted meritless post plea appeals. In those rare cases where relief is granted, relitigation of the case would be difficult because of the passage of time.

The Ninth Circuit rule is simply wrong. There is nothing presumptively ineffective about not filing an appeal after a guilty plea. There are few grounds for challenging the plea and the resulting sentence.

QUESTION: Well, do you think that on the facts of this particular case there might be some necessity to go back and review them?

I recognize that your position is that a per se rule is not appropriate, but it is somewhat troubling that here the magistrate judge found that Ortega wanted to appeal, was under the impression that his lawyer would file an appeal, and was himself incarcerated and not able to do it, and the lawyer testified that she couldn't remember her discussion about it with the defendant.

Now, when you put all those things together, perhaps, although you don't need a per se rule, there might be some reason here to think that an appeal should be given.

MR. O'CONNOR: Well, Your Honor, it is our position that, because there was no request for an appeal, and because there were no grounds for appeal that a reasonable attorney would have pursued, that there was no duty under the first prong of Strickland to file an appeal.

Also, I found that portion of the transcript where the defendant was advised of the sentence. It's at --

QUESTION: Are you reading from the transcript or the joint appendix?

MR. O'CONNOR: It's the joint appendix. It's page 25 of the joint appendix. It's the end of page 12 of the transcripts.

The court states, and do you understand that the term for second degree murder is 15 years to life? The defendant responds, yes.

QUESTION: Uh-huh.

MR. O'CONNOR: The court asks again, do you understand that? The defendant repeats, yes.

QUESTION: Well, I don't understand that to mean that he's going to get 15 years. I guess it's -- looks to me as though he understands that a potential term.

QUESTION: Was probation a possibility?

MR. O'CONNOR: Yes, Your Honor, it was a possibility, but under the California Rules of Court probation was only permissible under unusual circumstances, and defense counsel testified at the evidentiary hearing that a claim that the court abused its discretion in denying probation would almost certainly fail.

QUESTION: Yes, but the -- there at least was a claim, there was an argument, I guess, that there should have been probation. If there was an argument that there should have been probation, that flies in the face of your suggestion that there was an understanding that he was going to get a 15-year term.

MR. O'CONNOR: Well, Your Honor, I think the understanding was that he would receive a 15-year term and that the possibility of probation was highly unlikely.

QUESTION: Why don't you go earlier in the questioning?

So has anybody made any promises to you beyond what I have just said, namely that counts 2 and 3 will be dismissed, and there would be just the one count. Has anybody made any other promises? And the defendant says, promise?

In other words, the district attorney has promised if you plead guilty she's going to dismiss the other counts and the knife enhancement. Were any other promises made to you?

The defendant: No.

All right. Can you tell me what the term is for second degree murder? And he says he understands that it's 15 years to life.

MR. O'CONNOR: Correct, Your Honor.

QUESTION: You put all that together, it seems to me he understands he's going to get 15 years to life, and has been promised nothing else.

MR. O'CONNOR: That's right, Your Honor.

QUESTION: Yes, but you -- what you get is probably a clearly losing claim on appeal, but his argument is, I would like to have -- I think his argument is, I would like to have appealed because the sentence was too long. I didn't have to get 15 years. That was simply the outer limit.

And he may very well -- in front of me, I guess, he would certainly lose his argument there, but what he wants --

QUESTION: Life was the outer limit, I thought.

QUESTION: What he wants is to make the argument.

MR. O'CONNOR: Well, Your Honor, actually his argument is that he thought he was going to get 3-1/2 years, and there is simply no support for that.

QUESTION: Right, and he thought -- maybe there was no support for it, but you don't take this statement as an indication that he was agreeing that he would get 15 years.

MR. O'CONNOR: Well, Your Honor, I think he did understand that he was going to get 15 years. There was the portion of the transcript, the guilty plea transcript we just referred to. Also, the probation officer stated in the probation report that he would get 15 years to life. The defense attorney went over the probation report with him the day before sentencing, and then when he was sentenced to 15 years to life he expressed no surprise at that.

QUESTION: Okay. I think we may just disagree on what the record shows, but let me ask you this question.

Let's assume that there is a case in which there is no predetermined term in the -- as a part of the plea agreement. The defendant ends up getting a longer sentence than he wanted to get, a longer sentence than he thought he would get, and he wants to argue that, in fact, that sentence is, for whatever reason, improperly wrong, that it was error, and reversible error to sentence him to that long a sentence.

And let's assume, finally, that that kind of a claim is highly unlikely to succeed, maybe because he's just being unreasonable.

In that case, do you believe that there is no obligation, following the guilty plea, for counsel to counsel him about appeal and get an affirmative decision from him one way or the other?

MR. O'CONNOR: Well, Your Honor, if there are circumstances indicating the defendant might benefit from an appeal, or advice concerning an appeal --

QUESTION: Well, take my hypothetical. He doesn't like it, but we all know that he's going to lose if he makes that argument. It's highly unlikely that that will be a successful appeal. Does counsel have an obligation under the Strickland standard to counsel him that he has appeal rights and to get a yes or no answer from him as to whether he wants an appeal?

MR. O'CONNOR: Yes, Your Honor, counsel has a duty under the first prong of Strickland to advise concerning appeal rights, even after a guilty plea, if there are circumstances indicating the defendant might benefit from such advice. In other words, there are grounds --

QUESTION: No, but in my case the circumstances, the defendant probably isn't going to benefit. He's going to lose the appeal. Does -- is there a Strickland obligation to counsel him and get a decision on my hypothetical?

MR. O'CONNOR: Well, even if there are arguable grounds for appeal --

QUESTION: Yes or no?

MR. O'CONNOR: Yes, Your Honor.

QUESTION: If you can answer the question, yes or no.

MR. O'CONNOR: Yes, Your Honor. There would be a duty to advise --

QUESTION: There is a duty, okay.

MR. O'CONNOR: There would be a duty to advise of appeal rights, because there are arguable grounds for appeal, but there would be no duty to file the appeal.

QUESTION: Well, is there a duty to get a decision from the defendant, yes or no, as to whether he wants the appeal filed?

MR. O'CONNOR: Well, there would be a duty to advise the defendant. There would not be a duty to obtain a waiver of appeal rights.

QUESTION: No obligation to file an Afred brief in a case like that?

MR. O'CONNOR: An Anders brief?

QUESTION: Anders brief, rather.

MR. O'CONNOR: No, Your Honor. We're still at trial.

QUESTION: You contend that there's no arguable basis for appeal here, don't you?

MR. O'CONNOR: That -- well, that's correct, Your Honor.

QUESTION: So all of this, we're talking about some other case.

MR. O'CONNOR: Well, Your Honor, in the hypothetical posed --

QUESTION: Where there is no arguable grounds for appeal, what would he advise the defendant?

MR. O'CONNOR: Well, following a guilty plea --

QUESTION: He would advise the defendant there are no grounds for appeal.

MR. O'CONNOR: That is correct, Your Honor.

QUESTION: But in this case --

QUESTION: And if the defendant said appeal anyway, he would say, I can't appeal, there are -- you know, there are no grounds --

MR. O'CONNOR: Well, yes, Your Honor. The attorney would -- if the client wanted to appeal, and the attorney felt the grounds were frivolous, the attorney does not have an obligation to file the appeal, although the attorney would assist the defendant in filing his own appeal.

QUESTION: In other words, it's the guilty plea that relieves him of the Anders obligation?

MR. O'CONNOR: Well, Your Honor, again, the Anders obligation is actually an obligation of appellate counsel, to file an Anders brief. It's --

QUESTION: Well, I guess the lawyer at that point could say, well, I'm going to withdraw and ask the court to appoint different appellate counsel, if it would, but until the lawyer does withdraw, I suppose the lawyer has got the obligation under Anders, doesn't he?

MR. O'CONNOR: Well, if there are arguable grounds for appeal, the trial lawyer would have a duty to advise of appeal rights, but the lawyer would not have a duty to actually file the appeal unless there was either a request for an appeal, nonfrivolous appeal, or there were grounds on which any reasonable attorney would pursue an appeal.

QUESTION: So if the defendant simply sits mute and doesn't say, I want you to appeal, or I don't want you to appeal, the obligation is over at that point?

MR. O'CONNOR: After a guilty plea, generally speaking, yes.

QUESTION: But not after a trial?

MR. O'CONNOR: Yes, Your Honor. In a trial situation it can usually be assumed that the defendant does want to continue the litigation.

QUESTION: Well, but if the issue following the plea, if the issue upon which the defendant may want to appeal is the sentence, so that the -- and the sentence is not foreclosed by the guilty plea, why isn't the obligation, at least with respect to an appeal of sentence, the same following a plea as the obligation with respect to any issue following a verdict?

MR. O'CONNOR: Well, Your Honor, sentencing issues are usually addressed in a plea negotiations, so there usually are not --

QUESTION: If we've got a case in which there is no plea agreement about what the sentence will be, and the sentence may be higher than the defendant thinks is proper, so that the defendant would like to appeal it, why isn't the defendant in the same relationship to his counsel with respect to the sentence that any defendant is in relationship to counsel following a verdict and sentence?

MR. O'CONNOR: Well, yes, Your Honor, if the issue of sentencing is left completely open --

QUESTION: Well, it was open here, wasn't it?

MR. O'CONNOR: Well, no, Your Honor. The defendant understood that he would receive a sentence of 15 years to life.

QUESTION: Well, if -- let's assume we -- there's no plea agreement, I take it, in the record or anywhere else, to the effect that he was agreeing in advance to a 15-year sentence, was there?

MR. O'CONNOR: Well, Your Honor, a sentence of 15 years to life is the only sentence for second degree murder --

QUESTION: All he agreed to was that he agreed to plead guilty to second degree murder, which contained a punishment of 15 years to life.

MR. O'CONNOR: That's correct, Your Honor, and --

QUESTION: Was parole an option? I can't -- I'm not sure of your answer to the --

QUESTION: Probation.

MR. O'CONNOR: Probation.

QUESTION: Probation, I mean.

MR. O'CONNOR: Yes, Your Honor, it was an option, but under the California Rules of the Court it could only be granted in unusual circumstances.

QUESTION: No, but is it not conceivable -- well, I don't know, that the defendant thought, oh yes, if he sentences me it will be 15 years, but I at least have a long shot at probation? Isn't that conceivable?

I mean, would this case be different, say, if they didn't -- if this wasn't -- say the sentence could have been anywhere from 1 year to life, and he ends up getting a 20-year sentence, which was a lot more than he expected, the -- you'd make the same arguments I think, wouldn't you?

QUESTION: Well --

MR. O'CONNOR: Well --

QUESTION: Would you, or wouldn't you?

QUESTION: Answer Justice Stevens' question.

MR. O'CONNOR: Well, if the sentence was much more severe than what the defendant --

QUESTION: Yes.

MR. O'CONNOR: -- expected?

QUESTION: You have the same ambiguity about advice, and whether he really wanted to appeal and all that stuff is the same. The only difference would be, maybe he had some shot at relief on appeal.

MR. O'CONNOR: Well, I mean, if he has arguable grounds for an appeal, then there would be a duty to advise of appeal rights, but --

QUESTION: Is it at all likely in the California courts that one who pleads guilty to second degree murder and gets a sentence of 15 -- is going to get probation?

MR. O'CONNOR: No, Your Honor. I mean, an appeal --

QUESTION: If I understand your position, then, you would say in response to Justice Stevens' question that if there are no arguable grounds for appeal, as you say there is not here --

MR. O'CONNOR: Yes.

QUESTION: -- even if he got 30 years, instead of 15 years, there would be no requirement for the attorney to file an appeal.

MR. O'CONNOR: Well, yes, Your Honor. In other words --

QUESTION: Your case is made easy by the fact that he got the lowest that was available for that crime.

MR. O'CONNOR: Well, Your Honor --

QUESTION: Suppose he had gotten 30 years, would you still be making the same argument?

MR. O'CONNOR: Well, again, Your Honor, in this case the defendant got the only term he could have gotten for second degree murder. If there's an arguable issue for appeal, then an attorney has a duty to advise of those appeal rights.

QUESTION: But if there is no arguable issue to appeal, there is no need to advise.

MR. O'CONNOR: No duty to advise.

I'd like to reserve the remainder of my time for rebuttal.

QUESTION: Very well, Mr. O'Connor.

Mr. DuMont, we'll hear from you.

ORAL ARGUMENT OF EDWARD C. DuMONT

ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE,

SUPPORTING THE PETITIONER

MR. DuMONT: Thank you, Mr. Chief Justice, and may it please the Court:

The situation we have here arises when you have a counseled defendant who has pleaded guilty, has been given notice of the right to appeal, and arrives later on habeas claiming that ineffective assistance, incompetent advice from counsel led to the forfeiture of the right to a direct appeal.

Now, that poses a risk both of a serious constitutional deprivation, and a serious risk of abuse, because it comes after a time when all of these issues should initially be raised, and when there's some reliance interest from the State on the fact that no appeal was filed, and the challenge is to craft a rule that minimizes the risk both of the deprivation and of the abuse without unduly burdening the district courts, and we think the Court's cases provide a familiar model for that, which is simply the Strickland analysis.

Strickland teaches that there is a strong presumption of competent assistance --

QUESTION: Well, Strickland -- Strickland says we're going to approach it on a case-by-case basis. We're going to look at all the circumstances. Right?

MR. DuMONT: That's correct.

QUESTION: And there's an objectively reasonableness component of the lawyer's performance, and a prejudice component.

MR. DuMONT: That's correct.

QUESTION: Now, the Ninth Circuit seems to have applied some kind of a per se rule.

MR. DuMONT: Well, what the Ninth Circuit has done really is to, in this context, revert to what we would characterize as a knowing waiver or a deliberate bypass standard, and we think that's right, it's completely inconsistent with Strickland. They have completely eliminated the prejudice and even, really, the competence prongs of Strickland, so it's an entirely unrecognizable rule.

QUESTION: Well, if we were to agree that the Ninth Circuit's per se rule is invalid, would this case still have to be remanded to have the court below consider the circumstances here, where the magistrate said that Ortega wanted to appeal and thought the attorney was going to file an appeal?

MR. DuMONT: Well, all the magistrate said -- the magistrate's findings are very ambiguous, and a --

QUESTION: -- there's enough that you could characterize them that way.

MR. DuMONT: A remand would not be necessarily inappropriate once the Court articulates the rule. We don't think it's necessary here, because we think that if you look at the record as a whole, as the district court ought to do, on an ineffective assistance challenge, what you would find is that there is, a), no reason to think that counsel was incompetent in counseling about appeal, and 2) there's no reason to think that the defendant would -- there's no reasonable probability or significant possibility that the -- that a competently counseled defendant would have chosen to appeal under these circumstances.

QUESTION: May I ask just one sort of basic question on that point? Do you think the rule should be different after a trial and conviction on the one hand and after a guilty plea, then an interval, and then sentencing later?

MR. DuMONT: We think the rule -- the test is the same, but the result may very well be different in many of the cases, and that's because it's a facts and circumstances test, and the circumstance of a guilty plea is tremendously important, and that's for two reasons, really.

The first is that there's very little left to appeal, normally, after a guilty plea, although there's sentencing issues, of course, at least in the Federal system.

And the second one -- and the second issue -- there's no -- I would like to come back to this. There's really no sentencing issue here, I think.

But the second reason is that because -- the presumption is that there is competent counsel, and the presumption is that there will have been competent counsel on the guilty plea as well as on this issue of appeal, and it gets right to this question that you were discussing with my colleague.

If you assume competent counsel on the issue of whether or not to plead guilty, then you would assume that the lawyer had discussed with the client what the parameters of sentencing were going to be if he pled to second degree murder.

QUESTION: Let me just interrupt with one quick -- why don't you make the same presumption after a trial? You presume competency of counsel in all situations.

MR. DuMONT: That's absolutely right. It's simply that the record is much more likely to, considered as a whole -- there are two things.

First of all, the record is more likely to reveal issues that are worthy of appeal and, second, there is more reason to assume that the defendant was intent on fighting the conviction, was perhaps maintaining his innocence, and would have wanted to appeal. Both of those change significantly in the guilty plea context.

Now, if I can just point out that on this issue of the 3-1/2 years, which I agree, if you look through --

QUESTION: This is why there is no sentencing issue.

MR. DuMONT: Right.

QUESTION: Yes.

MR. DuMONT: If you look through the record here -- well, on the issue of the 3-1/2 years, that is an allegation that's made in some of the earlier habeas filings in the State system. It's not made, incidentally, here except by way of a factual statement.

I think that's only -- the 3-1/2 years only comes up in the written papers, which there's some reason to wonder whether this defendant was personally responsible for them, because he had assistance and he was in the prison when filing them.

When he was testifying at the evidentiary hearing in this proceeding, what he said was -- and this is at page 26 of the transcript of the evidentiary hearing. I'm afraid it's not in the joint appendix.

But what he said was, well, she -- meaning his attorney -- all she told me was to go the jail trusting her, that of the 15 years I would only do 7-1/2, and that I would get to work at the jail, I would receive payment, and so on.

Now, significant to that, actually, is that as I understand it good time credits, which do come off the 15-year minimum, could, in fact, in California have taken him down to 7-1/2, and that would suggest that what he got was competent counseling about the likely, both legal and practical effects of the sentence.

Now, the legal effect is that there's only one sentence --

QUESTION: Is that in fact what he got, as a practical matter, in his sentence, what he was describing in the transcript as you read it? Is --

MR. DuMONT: My -- my understanding -- I can't represent that firmly, but my understanding from my colleagues from California is that that is realistic, that from a 15-year minimum, under the statutory indeterminate sentencing scheme, with good time you could be eligible for release by the Board of Prison Terms as early as 7-1/2 years.

QUESTION: Is it clear from the transcript, and it may be that I wasn't listening carefully when you first started it, but is it clear from the transcript that he was saying that she advised him that he would get a 15-year term which would be subject to the good time credits, or that she was advising him that if he got a 15-year term it would be subject to the good time credits? Is it clear one way or the other?

MR. DuMONT: Well, if there was any kind of competent advice at all, the advice would have had to be, the term will be 15 years to life, because that is the only term authorized by statute. It is an indeterminate sentencing scheme in California.

QUESTION: So your argument, I take it, is we're not clear, the transcript is not clear on that, but on the assumption that counsel was competent, that's what she would have said?

MR. DuMONT: Well, and that there wouldn't be anything to appeal anyway --

QUESTION: Okay.

MR. DuMONT: -- because there's no other possible result.

QUESTION: But I mean, it seems to me that that reconstruction of what presumably went on is perhaps what he would like to test out on appeal.

MR. DuMONT: Well, I think -- if you look through the record -- this is what I was starting to say before. If you look through the record and come through it the way a lawyer might, I think it is true you would come up with a couple of things.

One is that issue, and one is the issue he raised before the California supreme court, which was, my attorney should have taken me to trial and tried to get manslaughter instead of second degree murder, it was a fight, and this kind of thing.

QUESTION: Okay. But let's assume that's -- that part is waived. He -- if the plea is a valid plea, that issue was waived, and the only thing that's left is sentence, and it seems to me that on the argument that you've just made there is a very plausible basis for saying that if he had taken an appeal on that issue, he would have lost, clearly.

On the other hand, we at least in the Anders situation require counsel to address the issue, and I'm not sure how your position squares with Anders. Can you help me out on that?

MR. DuMONT: All the Anders cases, enhancements on all the Anders cases are cases where we are already passed the filing of the notice of appeal, or we are into the appeal process, and so there's a supposition --

QUESTION: Okay --

MR. DuMONT: -- wanted to go forward.

QUESTION: -- but we make an Anders lawyer do what Anders says the lawyer must do, it would be strange if there were somehow a short-circuit to the process as you are arguing. I mean, it just seems odd to me.

MR. DuMONT: We agree that there is a constitutional duty to provide adequate representation about the question of whether or not to appeal.

The question is, when you come in on habeas ex post and you look back under conditions usually of great uncertainty about what happened, where is the risk of error going to fall, and we think it's inappropriate in those circumstances for it to fall entirely on the State, which is what the Ninth Circuit's rule does here.

QUESTION: Mr. DuMont --

MR. DuMONT: Instead, what you should look at is whether there is any reason to think that counsel was incompetent, which there is not here, and whether there was any reason to think that a competently counseled defendant would have gone ahead and lodged an appeal, and the answer here is no, because on the sentencing issue there is no --

QUESTION: So you're saying in effect you can't have a rule that says as a matter of law competent counsel must instruct on the appeal issue and get a -- an affirmative or a negative response one way or the other. You're saying that that is an improper gloss on Strickland.

MR. DuMONT: It is an improper gloss because it --

QUESTION: To require --

MR. DuMONT: -- would lead to inappropriate results that do not sufficiently respect the State's interest in finality, given the situation in which this will come up, where you will always --

QUESTION: But in your opening statement you built into it, and now I'm wondering whether you're taking out of it, you said, in a case where defendant was notified of the right to appeal. Here, the notice came from the court.

Suppose we have the same case, except that the court never told defendant anything about his right to appeal. Is your view any different, does anything turn on the court having said, defendant, you have to appeal within so many days, if you want a lawyer and you can't pay for one, we'll appoint one. Suppose the court had not said that.

MR. DuMONT: Yes to the following extent, that it is always a facts and circumstances test, and if the defendant doesn't have an independent source of advice -- this is really what Pigaro said. If a defendant doesn't have the independent source of advice, then he may very well need it from counsel.

QUESTION: Thank you, Mr. DuMont.

Mr. Denver, we'll hear from you.

ORAL ARGUMENT OF QUIN DENVIR

ON BEHALF OF THE RESPONDENT

MR. DENVIR: Thank you, Mr. Chief Justice, and may it please the Court:

I would like to, if I could, address a couple of matters that came up in questioning, and one of them is this factual question of California law. The -- on page 26, that was quoted by the Solicitor General, the statement --

QUESTION: 26 of what, Mr. --

MR. DENVIR: I'm sorry. It's of the supplemental excerpts of record.

QUESTION: Those aren't in the --

MR. DENVIR: They are not in the joint appendix. The parties did not put them -- but it was quoted by Mr. DuMont, about where the client said that of the 15 years I would only do 5-1/2. That statement was made after the sentencing. This was not part of the plea bargain. The question --

QUESTION: I thought it was 7-1/2 that he said before. Did he say 5-1/2?

MR. DENVIR: 7-1/2, I'm sorry. Did I say 5-1/2? Here's what was said. Did you tell that prisoner at that sentencing, your attorney did not tell you what the procedures were at the sentencing? Well, all she told me was to go to jail trusting her, that of the 15 years I would only do 7-1/2, so this was not part of -- before the plea bargain. It was after the sentencing.

The other thing is that it's incorrect under California law. Under California law, you can only get one-third off of that minimum eligibility of 15 to life, so you cannot be eligible for parole until you have served at least 10 years, and after that you still have to be found suitable for parole, so just as a factual matter that is -- that was incorrect.

But -- and there's also this question that Justice Souter had raised about whether there was predetermined sentence in this case. There was not a predetermined sentence in this case. What followed from his plea of second -- to second degree murder was that he would either be sentenced to 15 years to life, or, in an unusual case, he could get probation.

That was not ruled out by the plea agreement, and in fact the entire sentencing argument was about that. His lawyer argued at great length that he should be given probation, and it was unusual.

QUESTION: How likely would that be on your familiarity with California law, that he pleads guilty to second degree murder? Is it likely that he would get probation?

MR. DENVIR: It certainly is not common, but it's certainly possible, and --

QUESTION: Yes, but I -- my question, is it likely?

MR. DENVIR: Your Honor, I couldn't say it's likely. I couldn't say that.

QUESTION: He was not promised probation though, we know that.

MR. DENVIR: He was not promised probation; he was not promised 15 years.

QUESTION: Is there any chance -- is there any chance on earth that he could have successfully appealed, claiming that it was error not to give him probation?

MR. DENVIR: Your Honor, the statement has been made over and over again that there were no arguable issues in this appeal. There were two.

QUESTION: Just answer that arguable issue.

MR. DENVIR: Yes.

QUESTION: Do you think it was conceivable that for a conviction of second degree murder, where he got the minimum term, 15 years, he could have taken an appeal and said, you know, it was error not to let me go walking off on probation for a second degree murder that I have confessed to?

MR. DENVIR: I do. I do, and the reason is that there's a California supreme court case called People v. Harvey. People v. Harvey states that when you have a plea bargain with plea to certain counts and dismissal of other counts, the other counts cannot -- the facts underlying them cannot be considered on sentencing on the counts to which were pled.

In this case, almost the entire argument against probation was the district attorney talking about the facts underlying the count, so there was a Harvey error that may have been a basis for a reversal of the sentencing and going back again.

QUESTION: What were the facts justifying the plea to second degree murder?

MR. DENVIR: I'm sorry, what were the facts --

QUESTION: What were the facts justifying the plea to second degree murder?

MR. DENVIR: The factual basis was that there was testimony that he had stabbed the victim, who had died as a result of it, and --

QUESTION: What are the facts, though -- what --

QUESTION: And on those facts -- and had intentionally done so, I assume.

MR. DENVIR: I assume that's correct.

QUESTION: And on those facts you think it was conceivable that when the trial court decided not to give him probation, that trial judge would be reversed on appeal for not having given probation?

MR. DENVIR: Your Honor, it was available under California law, and --

QUESTION: That's not my question. Is it conceivable --

MR. DENVIR: It is conceivable.

QUESTION: To find reversed --

QUESTION: If it's conceivable, what are the factors? The recitation by the SG of California law is 1203(e)(2) prohibiting probation except in "unusual cases" and then California Rule of Court 413(c), which specifies the factors to be considered in determining whether a case is "unusual." So what are the factors that might make this unusual?

MR. DENVIR: Well, the factors that could have been affected by this argument of the district --

QUESTION: So what are the factors -- my question is, what are the factors that could have made this a "unusual case" as listed, I guess, in this Rule of Court?

MR. DENVIR: Your Honor, the rule provides that you can get probation if the facts or circumstances giving rise to the limitation on probation is, in this case, substantially less serious than the circumstances typically present, and the defendant has no recent record of committing similar crimes or crimes of violence.

QUESTION: Fine, so my question is, what are the circumstances that might have justified it?

MR. DENVIR: The provocation, the question of the drawing of the gun by the other person, the fact there was a general melee. There was a very good argument that this was either in self-defense, or imperfect self-defense.

The problem was that you had to show that you didn't have any prior or similar crimes of violence. The district attorney violated the Harvey rule by using the facts of the dismissed counts to argue that he did have prior crimes of violence and couldn't get probation. Now, that is a very arguable issue that he was deprived of.

The second arguable issue that he was deprived of is, he wanted to challenge this conviction. This was a man who had pled guilty under great protest, always saying that he was innocent during this.

Now, the Court in North Carolina v. Alford said that that is okay, that you can have a -- you can plead guilty if you in fact -- while also maintaining your innocence, but the Court did say that there are certain things that have to be done in that situation, and one of them is that the judge taking the plea must first make sure there's a factual basis for the plea, and the judge here did that. The preliminary hearing transcript and testimony was sufficient for that.

QUESTION: Was this an Alford plea, Mr. Denvir?

MR. DENVIR: This was an Alford plea, Your Honor, and the second part is, the Court said in Alford that this kind of plea should not be taken until the judge taking the plea has inquired into and sought to resolve the conflict between the waiver of trial and the claim of innocence. There was no attempt to do that at all, and there was a real claim of innocence here.

In the joint appendix, at page 17, at the very beginning of the plea colloquy, the court said to Mr. Flores, you would really like to have your trial, wouldn't you, Mr. Flores? He said, well, I would, but.

The court said, all right, then we're going to bring up the panel.

The defendant said, but I haven't finished. I haven't finished explaining. I would, but seeing that I am alone, I am with the help of no one, it's better that I plead guilty.

Now, that should have triggered an inquiry from the court as to why -- this is a defendant who just previously had asked for a different lawyer, and we believe there would have been an arguable issue under Alford.

QUESTION: Okay. So you're saying there were arguable grounds for appeal, but that's not the basis on which the decision below was made, was it?

MR. DENVIR: The decision below was made on the basis that there was not a decision by the client to forego the filing of a notice of appeal.

QUESTION: Whether or not there were arguable grounds of appeal.

MR. DENVIR: That's correct. They did not address that question.

QUESTION: They did not address the arguable grounds --

MR. DENVIR: And we do not believe that there should be a requirement that a defendant in this position have arguable grounds.

QUESTION: Let's hear you justify that, instead of talking about the arguable grounds --

MR. DENVIR: Well, what I -- the reason we don't is because basically what was said by -- in Justice O'Connor's concurring opinion in Pigaro last year, that it really puts an unfair burden on a pro se petitioner in the first initial habeas to be able to develop arguable issues without the assistance of --

QUESTION: What difference does it make -- what difference does it make if there are no arguable grounds of appeal?

MR. DENVIR: Well, Your Honor --

QUESTION: In retrospect, looking back, were there any arguable grounds of appeal? Answer, no. Why should it be ineffective assistance of counsel?

MR. DENVIR: Your Honor, the question is, how will that be determined? In this particular case, as I say, the trial counsel thought there were no arguable issues on appeal. I've cited to the Court two very arguable issues on appeal.

But I think the key point is that the State focuses strictly on the question of, was there a request for appeal or not? Our belief is, and I think the Solicitor General has joined it, that the first question is, is there a duty to give some advice to the client about an appeal and find out what the client wishes to do in that regard, because the Court held in Jones v. Barnes that this decision whether to appeal or not is one of those fundamental decisions that is decided --

QUESTION: What worries me is that there are 85 percent of all of these cases settle, I mean, guilty pleas.

MR. DENVIR: that's correct.

QUESTION: And suddenly we're proliferating vast numbers of appeals in the case where there is no ground. If there is a ground, well then, it is ineffective assistance of counsel, but suddenly to proliferate -- you know, I have no idea how many --

MR. DENVIR: Your Honor --

QUESTION: -- in a case where there is no ground is what's worrying me.

QUESTION: Why would he say no to an appeal? I mean, you know, counsel tells him, you know, there are really no grounds to appeal. You're going to lose. You want to appeal? This is free counsel. This is being giving to him. Why should he possibly --

MR. DENVIR: Well, in this case --

QUESTION: -- say no? No --

MR. DENVIR: In this case --

QUESTION: -- it's too much trouble.

MR. DENVIR: In this case he would have certainly appealed, because he said he wanted to keep on fighting the case. He was very unhappy with both the conviction and with the sentence.

QUESTION: I'm talking about the rule that you're proposing. Why wouldn't it produce frivolous appeals --

MR. DENVIR: Because some defendants --

QUESTION: -- and Alford briefs endlessly?

MR. DENVIR: When -- because some clients, some large number of clients, when they are told that there is nothing there, when they realize that the sentence is pretty much what they received, they're not unhappy with the representation that led up to the plea agreement, will decide not to appeal. There are waivers of appeal --

QUESTION: Hope does not spring eternal, even when the appeal is free, huh?

MR. DENVIR: Well, Your Honor, there are many plea agreements that have a waiver of appeal as part of them, and the client agrees to it. They understand what is going to happen, and they're willing to live with that.

QUESTION: That's because there's a quid pro quo. You don't get the plea agreement unless --

MR. DENVIR: That's correct.

QUESTION: -- you forego the appeal.

MR. DENVIR: That's correct.

QUESTION: But I'm talking about a client who hasn't done that.

MR. DENVIR: And --

QUESTION: Why wouldn't he take the appeal?

MR. DENVIR: He may very well have received exactly what he expected to get.

QUESTION: The lawyer tells him, there's no basis for appeal. Do you want to appeal?

MR. DENVIR: He may very well do that, and then, and other people -- the other reason he may not is because there may be adverse consequences that could flow from filing an appeal, as we pointed out, you can actually be -- win on appeal and receive a more severe sentence, and in California you can actually have your -- you can lose on appeal and have your sentence increased in a substantial amount, so there --

QUESTION: Mr. Denvir, in this case it does seem that the Ninth Circuit just didn't apply the Strickland standard in judging this --

MR. DENVIR: Your Honor --

QUESTION: -- issue. It seemed to craft some kind of a per se rule here of absolute consent or something.

MR. DENVIR: I think that the circuit, as the State would view it, did not focus and develop the advice of counsel question, and went merely to the question of whether there was a decision not to appeal, and in terms of the question of prejudice, we believe that the circuit's decision that all you have to show is that -- is the loss of a direct appeal of right with counsel, that is prejudice. That's actual prejudice under Strickland.

QUESTION: Well, I'm not sure it is. Don't you think there's a component on the prejudice side of at least having to have arguable grounds to appeal?

MR. DENVIR: Your Honor, I -- in the cases that the Court has decided --

QUESTION: It wouldn't even mesh with Anders. You'd be in an awful mess.

MR. DENVIR: Well, Your Honor, the problem is that if trial counsel usurps the decision on whether to appeal that is not trial counsel's to make, they will force the client to forfeit the right to an appeal where counsel will address these issues on a full appellate record and determine whether there's an Anders problem or a meritorious --

QUESTION: We're assuming -- you've got to take the hypothesis we're giving you. We're assuming that there's no basis for an appeal, that there isn't any.

QUESTION: Why spin our wheels?

QUESTION: You still -- right. You're -- it's like somebody suing somebody for not giving them a losing lottery ticket.

MR. DENVIR: Well, Your Honor --

QUESTION: Yes, he was deprived of an appeal, but it was worthless. The appeal was worthless.

MR. DENVIR: I think the problem is, how will the court determine whether or not there were no issues on appeal? That, under the court's jurisprudence, is determined with --

QUESTION: The way we're doing it now.

MR. DENVIR: -- assistance of counsel.

QUESTION: The way we're doing it now. After the fact, we're looking back. We don't need counsel. We have better than counsel. We have judges looking at it,

MR. DENVIR: We --

QUESTION: -- and those judges determined there was no reasonable basis for appeal, but you say, even though, you know, the best judges in the land look at it and say there's no reasonable basis for an appeal, nonetheless it was incompetent counsel for not taking this useless appeal.

MR. DENVIR: Your Honor, I believe it's Penson, but in one of the Court's appeals decisions, even though the State court had found no meritorious issues, the Court reinstated the appeal because they -- the Court believed that the defendant had a right to counsel with the advocate's view of the case, and that --

QUESTION: Penson was --

MR. DENVIR: -- should be substituted.

QUESTION: Penson was a direct appeal, and here you're on habeas, trying to reconstruct something that happened in the past. I think there's something to what the Government, the Solicitor General says here, that you have to balance the rights that existed at one time against how do we reconstruct as best as possible when the right was given up.

MR. DENVIR: Well, Your Honor, I think the difficulty here is, the reason we're on collateral attack is because there was a loss of the right to appeal because of the ineffective assistance of counsel.

QUESTION: Well, because the guy didn't file a notice of appeal.

MR. DENVIR: That's correct.

QUESTION: That's what was lost.

MR. DENVIR: And as a result, the client lost the ability to pursue these issues on direct appeal with counsel, and this counsel never claimed to provide Mr. Flores-Ortega, with his third grade education and his Spanish-speaking ability, any information about the appeal, didn't say that this is your decision, you have a right to appeal, these are the kinds of issues you can raise, you may need to get a certificate of probable cause if you want to attack the guilty plea, all that -- all the information that a client needs to make the personal decision whether to file a notice of appeal or not.

QUESTION: But I think you also have, if I understood what you were saying earlier, you have a separate answer to that, and that is, if you don't in effect require or impose kind of a per se obligation on counsel, at least to give counsel and to get a decision, then, in fact, the only way the meritorious claim is ever going to come to light is on habeas. There's no right to have habeas counsel, and you'll simply never find the meritorious cases. Am I characterizing your point right?

MR. DENVIR: I believe that's correct, Your Honor.

QUESTION: So if you don't do it this way, in effect the meritorious cases are probably not going to come to light.

MR. DENVIR: And I believe that's why the Court has never required that in a comparable situation, and I think that's the reason for the concurring opinion in Pigaro which said that really it's unfair and impractical to expect a counsel-less petitioner to be able to do the legal work to show the court whether there are or not meritorious issues, and instead, if counsel does his or her duty, gives some advice to the client, finds out what the client wants to do, and files a notice of appeal, then things will develop as they should with counsel and an appeal.

QUESTION: But why is that so? He can raise it later on habeas, as it's been raised later on habeas here, and then you can get good counsel and scratch up some arguable issues, and if he finds arguable issues, then you go back and look at it and you say, yes, indeed, there was ineffective assistance of counsel. Why is it the end of the world?

MR. DENVIR: I think it's twofold, Your Honor. One is that as a general matter the standards on collateral attack are higher than they are on direct appeal.

QUESTION: Yes, indeed.

MR. DENVIR: And secondly, there is no right to counsel --

QUESTION: All that for --

MR. DENVIR: -- on collateral attack, so how is this person -- this person has to go out, develop an appellate record on their own, do the legal research on their own, find the legal issues, file the habeas petition, and hope that at that point perhaps they will have counsel appointed to them as a matter of discretion. That's far different than filing a timely notice of appeal and having counsel appointed as a matter of right to pursue that.

I think -- and I think that's why the Court, it has not yet --

QUESTION: So you have to file frivolous notices of appeal, and then appellant counsel has to file Anders briefs in these frivolous cases.

MR. DENVIR: Well, Your Honor --

QUESTION: It's a wonderful system.

MR. DENVIR: -- my understanding is that the parties both agree that if there is a request by the client for the filing of a notice of appeal, that in its -- and there is no filing, that in itself meets any requirements under Strickland.

Now, the only thing that's different here is whether there is some duty on the part of counsel to talk to the client about an appeal and see whether they want to request an appeal or not. They would say that in a request for an appeal, it is not counsel's duty to say, I'm sorry, I'm not going to honor that because I don't think it's meritorious. They would have to file a notice of appeal to start the appellate process for whatever would come out of it.

QUESTION: Counsel can do that, even though counsel believes that there's no basis for it?

MR. DENVIR: Counsel may be very wrong, as Ms. Kops was in this case, and --

QUESTION: So is this called a -- what, an Anders notice of appeal?

MR. DENVIR: No, Your Honor. You know, what it is, I think it is, I think it's honoring the Court's ruling that the question whether to appeal is a personal decision that is not counsel's to make, it is the client's to make, and it shouldn't be usurped by counsel based on that particular counsel's view of whether there may be issues or not.

QUESTION: What does an attorney commit herself to in this case if she files a notice of appeal? I mean, that's a simple enough thing to do, but does she commit herself, at least in the eyes of the court of appeals, to proceed with the appeal?

MR. DENVIR: Not under California law. Almost invariably there is a switch from trial counsel to appellate counsel who are experienced appellate counsel under supervision from the appellate projects, as you have heard in the Robbins case. So there is -- there's a bar of appellate counsel that would take this from an appellate counsel's view and undoubtedly would have found the two issues that we've suggested under Alford and under Harvey.

QUESTION: What would your position be in a case in which, number 1, as here, there is a guilty plea, and number 2, there was a plea agreement definite as to sentence and that agreement was honored?

Would you say that there was still an obligation to -- for counsel to consult with the client and get an affirm --

MR. DENVIR: Yes, Your Honor, because --

QUESTION: Why? Why?

MR. DENVIR: Because I think what you'd have to do -- and this is not unusual. This is dealt with in Federal courts all the time. You would explain, this is the situation, this is the plea agreement, you received this, there are no issues, but if the client said, I want a notice of appeal filed, it would be filed. That's required under Federal law now, I mean, as a matter of the Federal Rules, so -- and the -- and then --

QUESTION: But in a case like that, I presume the hypo is such that as a matter of law there could be no relief -- there could be no prejudice because there could be no relief.

MR. DENVIR: I think in a hypo like that, in most cases, if you have a proper relationship between the client and counsel they will abide by the decision, that they will have received what they thought they were going to receive, that they were told by counsel they would receive, that there were no appellate issues, and they will not request the filing of a notice of appeal.

QUESTION: Oh, I'm sure that's so, but you -- despite the fact that on the hypo there is, I guess we could say as a matter of law there would be no relief, you would still require the affirmative act of counsel.

MR. DENVIR: I think, Your Honor, that since it is the client's decision under both the Federal rules, under Jones v. Barnes, counsel has to file the notice of appeal.

QUESTION: That goes beyond --

MR. DENVIR: That would be the Anders procedure I --

QUESTION: But that's taking you beyond Strickland. I mean, your argument in this case is, we're not really going beyond Strickland, because the only way in effect to identify the meritorious Strickland cases is to put a gloss on the Strickland reasonable competence standard by saying, counsel has got to do this much as least.

But now, in answer to my hypo, I think you're going beyond Strickland, because I think you're saying that even when therein, as a matter of law could be no ultimate prejudice, they've still got to do it, and so that's not Strickland. That seems to me a new Sixth Amendment rule.

MR. DENVIR: Your Honor, I don't think it is. It -- certainly the ABA standard is part of what reasonably competent --

QUESTION: Well, but we're talking about the Constitution here --

MR. DENVIR: I understand.

QUESTION: -- not about the ABA standard or -- and certainly California isn't bound by the Federal Rules of Evidence, which you're quite right make it as you say, but why should we incorporate those into the Constitution?

MR. DENVIR: Your Honor -- Your Honor, the reason I believe is that in Strickland the Court stated that one of the basic duties of counsel is to provide consultation to the client about important decisions.

In Jones v. Barnes, the Court said that the decision whether to appeal or not is a fundamental decision which cannot be decided by counsel. It is one of the four that can only be decided by the client, and we think that follows from those lines of cases that the role of counsel is to be assisting this -- the client in making the decision, because the fact is --

QUESTION: With decisions within the realm of the possible. The lawyer doesn't have to advise him about how he can levitate himself out of prison.

MR. DENVIR: No. No, that's correct, Your Honor.

QUESTION: If appeal is not available, if there's nothing to be gained from it, counsel doesn't have to advise about that utterly impractical, never-will-happen --

MR. DENVIR: Well, Your Honor, I --

QUESTION: -- it seems to me.

MR. DENVIR: If appeal is available, then it is not talking about something that's a will-of-the wisp, and the client has a right to pursue that appeal.

QUESTION: The issue isn't whether appeal is available. The issue is whether relief is available. If no relief is available, there's nothing to be gained.

MR. DENVIR: Well, Your Honor, the Court has said, though, that it s not counsel to decide that, and the defendant may, in that situation, want a second opinion. If Mr. Flores-Ortega got a second opinion --

QUESTION: It could well be, and we're looking back. Maybe counsel should have told him. The fact is, has there been any harm done? Has there been incompetence of counsel in failing to do that?

MR. DENVIR: I think in this case, Your Honor, because of incompetence of counsel, he lost his direct appeal of right with new counsel and two arguable issues, and an opportunity perhaps --

QUESTION: Leave that out of the case, because that's not the rule that you're asking us to adopt. You're asking us to adopt a rule that applies whether there are arguable issues or not.

MR. DENVIR: That's correct, Your Honor, but I -- I'm not -- I'm asking the Court -- the Court could have a more limited rule, and I believe that Mr. Flores-Ortega comes within that more limited rule.

QUESTION: But your rule goes beyond Strickland. You agree, don't you?

MR. DENVIR: I don't believe so, Your Honor.

QUESTION: How does it -- why does it not go beyond Strickland, at least on the prejudice prong?

MR. DENVIR: Your Honor, because I don't think the Court has at any point in any of its decisions, Rodriquez, or Penson, or Evitts, any of those, required that an unrepresented defendant prove that there were meritorious issues.

The Court has not done that in any case at all, and there was a concurring opinion joined by three justices last year in Pigaro saying that there would be unfair to do, and the reason is the practical reason that you can't expect someone without counsel to play the role of counsel to remedy the absence of counsel.

QUESTION: I can understand your argument in a case in which at least it is conceivable -- strike the word conceivable.

I can understand your argument in any case in which you don't start with the hypothesis that at the end of the road there can be no relief, and the reason I accept your argument there, at least at this stage of the game, is that there's a problem of administrability, and it's far better simply to let's have the appeal and find out than be speculating in fact about very, very difficult cases.

But in the case that I put to you, I at least was calculating my hypothesis in such a way that at the end of the road there could be no possible relief. He had pleaded guilty, he got exactly what the plea agreement called for, so I could conceive of no situation in which he could get relief. That, it seems to me, does go beyond Strickland.

MR. DENVIR: Well, Your Honor, if there could be a reliable determination based on whatever would be before the Court that there is no possibility of relief, then I would agree. But I think the problem you have is, the question is, how is that determined by the Court? The Court should only --

QUESTION: Why isn't it sound to determine it on the basis of the hypothesis? If the guilty plea is assumed to be a voluntary plea, so you're not attacking the plea itself on the issue of guilt, and the plea agreement has been honored in every jot and tiddle, he got exactly what he agreed upon, why isn't that a case that should be accepted from the rule that you want us to apply here?

MR. DENVIR: That may be that it should be, Your Honor. If there is no complaint regarding the guilty plea, and there's no complaint regarding the sentence, then -- then I don't know that there would be any showing of prejudice no matter what counsel was involved in it.

That's a very rare situation. In those situations, I think you would find that if counsel were to advise the client of the situation, there would be a decision not to appeal, and you wouldn't have this problem.

QUESTION: Is it immaterial that the court told the defendant in this case, you have a right to appeal, so many days, we'll appoint a counsel if you can't pay for one? Here, there was no * at least.

MR. DENVIR: Well, there was a statement which was not required by State law that -- and it was, you can file an appeal 60 days from today in this court. It didn't say you have the right to appeal. It didn't say you file a notice of appeal. It was -- it didn't explain a lot.

But in any case, for someone in Mr. Flores-Ortega's position, with his education and a Spanish-speaking, he needed more information than that. He --

QUESTION: He doesn't speak English?

MR. DENVIR: No, Your Honor. It was interpreted.

QUESTION: Or he does speak Spanish?

MR. DENVIR: He speaks Spanish, and certified interpreters were used in all the proceedings. He does not speak any English, or writing --

QUESTION: He doesn't speak any, but the court's statement to him was translated to him, you said?

MR. DENVIR: There was -- absolutely. It was translated.

QUESTION: But you say, as a -- you're favoring the Ninth Circuit per se rule, so that it would be immaterial that the court in fact notified the defendant had a right to appeal.

MR. DENVIR: Your Honor, because I think that what caused the loss of the right to direct appeal was the ineffective assistance of defense counsel, that regardless of any advisement that was given by the court, there was a factual finding that Mr. Flores-Ortega did not understand what an appeal was, therefore there was no movement to exercise the decision to have an appeal.

So I think that, although it's salutary to have that type of advice, I don't think it's any substitute for counsel dealing with the client in that manner, trying to decide --

QUESTION: In your experience of the, say, 80 to 90 percent of the cases that are settled by a guilty plea, of that, what percentage in your experience appeal?

MR. DENVIR: Your Honor, if it is settled by a guilty plea with a predetermined sentence, almost nobody appeals. If it is under the sentencing guidelines quite often there will be loose ends. There will be agreement on certain things, and other things left open to the court. Quite often there are appeals there, because there are --

QUESTION: Do you have any -- can you give me any ball park -- because you defend -- you're aware of it. Maybe you can't. I mean, maybe you can't.

MR. DENVIR: I don't think I could give any reliable, but if there is truly a predetermined sentence, then there's almost never an appeal, and if there is not a predetermined sentence, therefore there usually are arguable issues, then there is an appeal and it's pursued. I think that's our experience under the sentencing guidelines, which have all that built into it.

QUESTION: Does California have sentencing guidelines the same way the United States does?

MR. DENVIR: Your Honor, it has a determined sentencing law, which is very complex. It wasn't applicable in this case, because the homicide murders have these different indeterminate sentencing laws, but California does have a very complex one, with questions of double sentencing and concurrent and consecutive sentencing, and it's a very complicated matter. It generates many appeals, much as the sentencing guidelines do, because of the complexity of it.

If the Court has no other questions, thank you.

QUESTION: Thank you, Mr. Denvir.

Mr. O'Connor, you have 4 minutes left.

REBUTTAL ARGUMENT OF PAUL E. O'CONNOR

ON BEHALF OF THE PETITIONER

MR. O'CONNOR: First, with regard to the Harvey issue, Harvey is a California case which states that a sentencing court cannot rely on facts which are related solely to accounts dismissed pursuant to a plea bargain.

However, in this case, the sentencing court relied on facts that were related to the murder. For example, it relied on the fact that the respondent was armed and the victim was not, and that's at J.A. 40, at joint appendix, page 40.

Also, with respect to the Harvey issue, opposing counsel mentioned that the prosecutor used -- factually went into the * dismissed counts. Even assuming this is correct, it is irrelevant, because the Harvey standard pertains to the trial court's actions and, again, the trial court didn't rely on any facts solely related to the dismissed counts.

With respect to the Alford issue, I'd like to make two points. First of all, Alford involved factual innocence. The defendant claimed he didn't shoot anyone. This is not the same claim in this case. In this case, Mr. Ortega made the claim in his California supreme court petition that he was only guilty of manslaughter. Well then, manslaughter theory should have been pursued.

Also, opposing counsel stated that a judge taking the plea under Alford must resolve the conflict between the guilty plea and the claim of innocence. Actually, the trial judge did this in effect because the defense attorney stated why the guilty plea was being entered despite the claim of innocence. This is at J.A. 26-27, pages 26-27 of the joint appendix.

The court asked, So, counsel, I understand that this plea is made under People v. West, which is California's analogue to Alford. Is that correct?

Defense attorney, That is correct, and I did write on the form, the change of plea form, and I went over with Mr. Flores this morning numerous times the explanation that was given for his change of plea, and that is that if he goes to trial there was the risk that he could be found guilty of crimes for which he could receive more severe sentences, and that is the reason that Mr. Flores is pleading guilty.

So there's the explanation for why the defendant entered his plea despite his claims of innocence. He wanted to avoid a more severe sentence, and Alford allows that.

QUESTION: Mr. O'Connor, do you agree on the basic proposition that a trial counsel or, in this case, plea and sentencing counsel, does have an obligation to explain to the defendant what an appeal is and what his rights are?

And then switching from the question of whether a notice has to be filed, is there an obligation to advise the defendant about an appeal?

MR. O'CONNOR: Well, Your Honor, there's an obligation under only two circumstances. First, where the defendant inquires about appeal rights, and then secondly where there are circumstances indicating the defendant may benefit from such advice. In other words, there are --

QUESTION: So if he doesn't -- defendant in this case, the magistrate found the defendant didn't know anything about an appeal. Doesn't -- but you say he must inquire --

MR. O'CONNOR: No.

QUESTION: -- and if he doesn't have the knowledge to inquire, it's too bad?

MR. O'CONNOR: No, Your Honor. In that circumstance the question would be, are there circumstances indicating the defendant could benefit from appeal advice, and that question boils down to the issue of whether there were grounds, or more specifically arguable grounds for appeal. So in this case, there were no arguable grounds for appeal, so counsel had no duty to advise of appeal rights.

QUESTION: And what authority --

QUESTION: Has that been determined --

QUESTION: What authority do you have for that?

MR. O'CONNOR: Well, yes, that's --

QUESTION: -- by anybody?

MR. O'CONNOR: Well, in part we're relying on a Ninth Circuit case called Marrow, which we cited in our briefs, and a number of other --

QUESTION: But in this case I had assumed there's been no determination whether there were arguable grounds.

MR. O'CONNOR: Well, that's simply the Warden's position, that there are no arguable grounds.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. O'Connor. The case is submitted.

(Whereupon, at 12:04 p.m., the case in the above-entitled matter was submitted.)