Petitioner Lozada failed to file a direct appeal from his Nevada
state court convictions. After exhausting state postconviction
remedies, he filed a petition for a writ of habeas corpus in the
Federal District Court, alleging that he had been deprived of the
opportunity to appeal his convictions by the ineffective assistance
of his counsel, who,
inter alia, never told him of his
right to appeal. The court dismissed the petition, holding that
Lozada's allegations failed to show prejudice under the standard
set forth in
Strickland v. Washington, 466 U.
S. 668, because Lozada had not demonstrated that an
appeal might have succeeded. Subsequently, both the District Court
and the Court of Appeals denied Lozada a certificate of probable
cause to appeal the dismissal of his petition.
Held: The Court of Appeals erred in denying Lozada a
certificate of probable cause because, under the standards set
forth in
Barefoot v. Estelle, 463 U.
S. 880,
463 U. S. 893,
for issuance of a certificate, he made a substantial showing that
he was denied the right to effective assistance of counsel. The
issue of prejudice could be resolved in a different manner than the
one followed by the District Court. At least two Courts of Appeals
have presumed prejudice by the denial of the right to appeal, yet
the Court of Appeals in the instant case neither cited nor analyzed
this line of authority.
Certiorari granted; reversed and remanded.
PER CURIAM.
Petitioner Jose M. Lozada was convicted in Nevada state court in
1987 of four crimes arising out of the possession and sale of a
controlled substance in violation of the laws of that State. Lozada
filed no direct appeal. After exhausting state postconviction
remedies, he filed a petition for a writ of habeas corpus in the
United States District Court for the District of Nevada. Lozada
contended that ineffective assistance of counsel had deprived him
of the opportunity to appeal his state court convictions. In
particular, he alleged his attorney failed to inform him of his
right to appeal, of the procedures
Page 498 U. S. 431
and time limitations for an appeal, and of his right to
appointed counsel. The habeas petition alleged further that the
attorney had failed to file a notice of appeal or to insure that
Lozada received appointed counsel on appeal. It also implied that
Lozada had been misled when the attorney told Lozada's sister that
his case had been forwarded to the public defender's office.
Without holding a hearing on Lozada's claims, a federal
magistrate recommended that the petition be dismissed. The District
Court agreed and dismissed the petition, rejecting the ineffective
assistance claim on the ground that petitioner's allegations failed
to satisfy the standard set forth in our decision in
Strickland
v. Washington, 466 U. S. 668
(1984). The court acknowledged that trial counsel's alleged failure
to inform petitioner of his right to appeal might constitute
conduct below constitutional standards. It reasoned, however, that
Lozada had not indicated what issues he would have raised on
appeal, and had not demonstrated that the appeal might have
succeeded. As a result, the court concluded that petitioner had not
shown prejudice under the
Strickland test. The District
Court later denied Lozada a certificate of probable cause to appeal
the denial of habeas relief,
see 28 U.S.C. ยง 2253, again
stating that Lozada had failed to show any prejudice from counsel's
alleged errors. The United States Court of Appeals for the Ninth
Circuit also denied a certificate of probable cause in a
one-sentence order. Lozada filed the instant petition for a writ of
certiorari, which we now grant along with his motion for leave to
proceed
in forma pauperis.
In
Barefoot v. Estelle, 463 U.
S. 880,
463 U. S.
892-893 (1983), we delineated the standards for issuance
of a certificate of probable cause. We agreed with the courts of
appeals that had ruled that "a certificate of probable cause
requires petitioner to make a
substantial showing of the denial
of [a] federal right.'" Id. at 893 (quoting Stewart v.
Beto, 454 F.2d 268, 270, n. 2 (CA5 1971), cert.
denied, 406 U.S. 925 (1972)).
Page 498 U. S. 432
We also quoted with approval
Gordon v.
Willis, 516 F.
Supp. 911,
913 (ND
Ga.1980) (citing
United States ex rel. Jones v. Richmond,
245 F.2d 234 (CA2),
cert. denied, 355 U.S. 846 (1957)),
which explained that, in order to make a substantial showing of the
denial of a federal right, a petitioner who has been denied relief
in a district court
""must demonstrate that the issues are debatable among jurists
of reason; that a court could resolve the issues [in a different
manner]; or that the questions are
adequate to deserve
encouragement to proceed further.'""
463 U.S. at
463 U. S. 893,
n. 4.
We conclude that the Court of Appeals erred in denying Lozada a
certificate of probable cause because, under the standards set
forth in
Barefoot, Lozada made a substantial showing that
he was denied the right to effective assistance of counsel. The
District Court rested its analysis on the prejudice prong of the
Strickland inquiry, and that was presumably the basis for
the Court of Appeals' decision to deny a certificate of probable
cause. We believe the issue of prejudice caused by the alleged
denial of the right to appeal could be resolved in a different
manner than the one followed by the District Court. Since
Strickland, at least two Courts of Appeals have presumed
prejudice in this situation.
See Abels v. Kaiser, 913 F.2d
821, 823 (CA10 1990);
Estes v. United States, 883 F.2d
645, 649 (CA8 1989);
see also Rodriquez v. United States,
395 U. S. 327,
395 U. S. 330
(1969). The order of the Court of Appeals did not cite or analyze
this line of authority as reflected in
Estes, which had
been decided before the Ninth Circuit issued its ruling.
The judgment is reversed and the case remanded for further
proceedings consistent with this opinion.
It is so ordered.
THE CHIEF JUSTICE and Justice O'CONNOR would deny the petition
for a writ of certiorari.