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Name: Gardner v. Appellate Division (People)
Case #: E066330
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 11/12/2019

When the prosecution appeals from a suppression order in a misdemeanor case, the appellate division of the trial court cannot compel the public defender to represent the defendant in the proceedings and must appoint new counsel. Defendant Lopez's motion to suppress evidence in a misdemeanor case was granted and the trial court dismissed the case in the interests of justice. The People appealed. The appellate division declined to appoint counsel on the basis that California Rules of Court, rule 8.851 allows the appellate division to appoint counsel only for an indigent defendant who has been "convicted of a misdemeanor."…

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Name: Garza v. Idaho
Case #: 17-1026
Court: US Supreme Court
District USSup
Opinion Date: 02/27/2019

The presumption of prejudice recognized in Roe v. Flores-Ortega when trial counsel fails to file a notice of appeal when instructed applies regardless of whether the defendant has signed an appeal waiver. Garza signed two plea agreements, each containing a clause stating that he waived his right to appeal. Shortly after sentencing, Garza told his attorney that he wished to appeal. Instead of filing the notice of appeal, the attorney informed Garza that an appeal would be "problematic" given his appeal waiver. After the period of time for Garza to preserve an appeal lapsed, he sought state postconviction relief alleging…

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Name: People v. Martinez
Case #: G052440
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 04/26/2016

Wende/Anders procedures are not required in appeal from an order extending the commitment of a defendant found not guilty by reason of insanity (NGI). In 2004, Martinez was found NGI of first degree burglary and attempted burglary. In 2015, his civil commitment was extended. He appealed the extension and appellate counsel filed a brief advising the court that he found no issues. However, counsel also argued that due process required the appellate court to undertake an independent review of the appellate record. Held: Appeal dismissed. When the defendant has a federal constitutional right to appellate counsel, and appellate counsel…

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Name: Christeson v. Roper
Case #: 14-6873
Court: US Supreme Court
District USSup
Opinion Date: 01/20/2015

Defendant is entitled to conflict-free counsel to argue for equitable tolling of AEDPA where his appointed attorneys missed his filing deadline. Petitioner was convicted of three counts of murder and sentenced to death. The State (Missouri) affirmed judgment on direct appeal and denied post conviction motions for relief. His federal writ petition was due by April 10, 2005 under AEDPA's statute of limitations (28 U.S.C. § 2244(d)(1)). Nine months before the deadline, attorneys were appointed to represent petitioner in federal proceedings; they failed to meet with him until six weeks after the deadline for filing and filed his petition 117…

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Name: People v. Kent
Case #: G049669
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 08/27/2014

Fourth District Court of Appeal, Division 3 encourages counsel to continue to identify possible appellate issues in Wende briefs. Kent's appointed counsel filed a brief under the procedures outlined in People v. Wende (1979) 25 Cal.3d 436. In his brief, counsel summarized the "possible" legal issues with citations to the record and appropriate authority, but raised no specific issues and requested review of the record pursuant to Wende. The appellate court found no arguable issues, and affirmed the judgment. The opinion was published to encourage appointed counsel to continue to include "arguable but unmeritorious" issues in Wende briefs filed in…

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Name: McDaniels v. Kirkland
Case #: 09-17339
Court: US Court of Appeals
District 9 Cir
Opinion Date: 07/25/2014

For a federal court to conduct a comparative jury analysis to review a state trial court's ruling in a Batson challenge, appellate counsel must insure that the record before the state appellate court includes the entire voir dire transcript and any juror questionnaires. McDaniels and Jenkins were charged with murder. They raised a Batson v. Kentucky (1986) 476 U.S. 79 claim after four African-Americans were excused during voir dire. The trial court found the defense established a prima facie case of discrimination but, after the prosecution offered race-neutral reasons for its challenges, denied the motion. The convictions were affirmed by…

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Name: People v. Rivera
Case #: A140128
Court: CA Court of Appeal
District 1 DCA
Division: 2
Opinion Date: 06/05/2014
Subsequent History: 7/2/14 mod. opn. & rehrg den.

Trial court must accept late filed notice of appeal because defense attorney's failure to file a separate appeal from a restitution order amounted to ineffective assistance of counsel. Rivera was convicted of murder and other offenses, and on September 24, 2013 was sentenced to 35 years to life. A timely notice of appeal was filed on October 2. On November 25, the trial court held a restitution hearing and ordered Rivera to pay more than $100,000. No notice of appeal was filed from that hearing until February 11, 2014, when appellate counsel was appointed. The court clerk declined to accept…

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Name: Nguyen v. Curry
Case #: 11-56792
Court: US Court of Appeals
District 9 Cir
Opinion Date: 12/04/2013

The standard for "cause" articulated in Martinez v. Ryan (2012) 132 S.Ct. 1309 to excuse a state-court procedural default in federal habeas proceedings applies when the underlying ineffective assistance of counsel (IAC) is by appellate counsel. In a California trial court, Nguyen was convicted of felony drug possession and felony possession of a forged driver's license. In his first state appeal, the forgery conviction was reduced to a misdemeanor. The trial court had imposed a life term for this count, but struck six serious felony priors on the remaining drug possession count. On remand the trial court reversed its earlier…

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Name: People v. Freeman
Case #: B237613
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 10/15/2013

Where the court determines that an appellant has been deprived of effective assistance by appellate counsel, the court can remove the attorney from the case. Appellant, having been sentenced to a 15-year-to-life term plus a determinate term, was represented on his appeal by retained counsel. Counsel filed opening briefs that did not comply with the Rules of Court because they failed to set forth comprehensible statements, issues presented, and the applicable law. With the first three briefs, counsel was provided the opportunity to file an opening brief that conformed to the Rules. Because the fourth brief also violated the…

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Name: People v. Serrano
Case #: H036373
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 11/28/2012

When an appeal originates from a postconviction proceeding rather than a first appeal of right, the Court of Appeal is not required to conduct a Wende review. Appellant faced deportation as a result of a criminal conviction. He initially appealed the conviction but voluntarily abandoned his appeal. After he served his prison sentence, he filed a motion in the trial court to vacate the conviction based on the trial court's alleged failure to provide a Penal Code section 1016.5 admonition (regarding immigration consequences) at the time of the plea. He also alleged he did not understand the plea and his…

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