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Name: Redante v. Yockelson
Case #: D041480
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 09/30/2003
Subsequent History: None

Malpractice action by a criminal defendant against his appointed appellate counsel fails for lack of showing. Redante sued Yockelson, his appointed appellate attorney, for negligence in failing to timely file a habeas corpus petition and for failing to raise all arguable issues on appeal. The trial court granted Yockelson’s summary judgment because Redante could not maintain a cause of action for legal malpractice against Yockelson without first establishing his actual innocence in a post-conviction judicial proceeding. The Court of Appeal here affirmed. Determining whether appellate counsel was ineffective depends on whether counsel failed to raise an “arguable” issue, that is, a “potentially successful contention.” (People v. Valenzuela (1985) 175 Cal.App.3d 381, 390-391, overruled on another ground in People v. Floor (1998) 18 Cal.4th 470, 490, fn. 12.) In addition, a criminal defendant has no constitutional right to counsel in habeas corpus proceedings, and consequently, no right to effective assistance of counsel. (Miranda v. Castro (9th Cir. 2002) 292 F.3d 1063, 1068; Miller v. Keeney (9th Cir. 1989) 882 F.2d 1428, 1432.) Also, plaintiff failed to show he was actually innocent, which is a requirement for maintaining a malpractice action in a criminal case. (Wiley v. County of San Diego (1998) 19 Cal.4th 532, 535.)