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Name: Manning v. Foster
Court: US Court of Appeals
District 9 Cir
Opinion Date: 08/22/2000
Subsequent History: None

Where the district court dismissed petitioner’s habeas petition on grounds of procedural default because petitioner did not raise ineffective assistance of counsel in state court, and where petitioner made no claim of actual innocence, the Court of Appeals had to determine whether there was “cause” and “prejudice” to excuse his procedural default. Here, trial counsel disclosed that he had failed to file the notice of appeal on time, and informed petitioner that his only recourse was to file a motion for reconsideration, and to appeal from that. Trial counsel also admitted to petitioner that he was not optimistic about the outcome. Trial counsel followed this course and it was, as he predicted, unsuccessful. The Court of Appeals found petitioner’s procedural default was occasioned by an “objective factor” that was “external” to him: trial counsel’s unauthorized representation of petitioner in post-conviction proceeding in which trial counsel was tainted by a conflict of interest. The appellate court remanded to permit the district court to conduct a limited factual hearing to determine whether these actions effectively prevented petitioner from learning of and vindicating his right to petition for state post-conviction relief within one year of his conviction. Petitioner’s showing of prejudice was also adequate: he would have appealed but for his attorney’s error. Prejudice is therefore presumed, and the district court erred in dismissing petitioner’s ineffective assistance of counsel claim. If petitioner can demonstrate that trial counsel’s actions prevented him from learning of and timely vindicating his state post-conviction relief, he is entitled to habeas relief that will allow him to file a direction appeal from his conviction. In petitioner’s federal habeas action, predicated on the ineffective assistance of counsel rendered when trial counsel failed to file a timely notice of appeal as requested by petitioner, the Court of Appeals found that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) applied. Accordingly, petitioner should have obtained a certificate of appealability (COA) to proceed with his appeal from the district court’s dismissal of his habeas petition on grounds of procedural default. The district, however, mistakenly issued a certificate of probable cause (CPC) rather than a COA. The appellate court nonetheless held that the showing petitioner made to obtain the CPC (a substantial showing of the denial of a federal right) was sufficient to satisfy the showing required for the issuance of the COA (a substantial showing of the denial of a constitutional right) required by the AEDPA, and it could therefore grant the COA and exercise appellate jurisdiction over the ineffective assistance of counsel issue.