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Name: In re Grunau
Case #: H015871
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 12/30/2008

To warrant recall of a remittitur when the appellate judgment results from ineffective assistance of counsel in abandoning the appeal, appellant must show he had no personal fault in the dismissal, he or his family acted with reasonable diligence in trying to protect his appellate rights and in discovering the dismissal, and also acted with diligence after discovering it. Petitioner was convicted in 1996 and sentenced to serve life in prison. Petitioner’s father retained an attorney to prosecute the appeal. Appellate counsel timely filed a notice of appeal, but in January 1997, the court dismissed the appeal because no opening brief was filed. The remittitur issued in April 1997. Because the attorney failed to communicate with petitioner, petitioner relied on his father to communicate with counsel. Between 1996 and 2004, petitioner’s father called the attorney regularly. Counsel never said the appeal was dismissed. Rather, he consistently assured the father that it was proceeding and provided plausible reasons for the delays. The attorney resigned from the State Bar in 2001 while facing multiple pending disciplinary actions, but he did not disclose this. The father tried to confirm the attorney’s assurances with the superior court, but not until August 2004 did he learn about the dismissal. He went to the law library to research possible solutions. Finding none, in November 2004 he called the court and the clerk suggested calling SDAP. In March 2005, SDAP filed a motion to recall the remitittur which the Court of Appeal initially denied because of the long passage of time. SDAP filed a habeas corpus petition in the Supreme Court. It issued an OSC returnable to the Court of Appeal. This time the court granted relief. The attorney had taken money for representation and abandoned the appeal without authorization. He intentionally misled the family about the progress of the appeal. And while a defendant should be more active in the appeal, it was not unreasonable for petitioner to rely on his father, and his father was diligent.