US v. Sandoval-Lopez

No. 03-35594 (6-6-05). Hard on the heels of what advice to give (see above), this decision deals with the defendant's instructions to counsel to appeal. Here, defendant was facing lots of time for lots of heroin. His counsel got a pretty good deal for misprison of a felony and a telephone count for a total of 7 years. A year after sentencing, though, defendant filed a habeas arguing that he told counsel to appeal. The 9th then discusses at length the standard for appealing in indigent representation: there was a waiver, the plea colloquy was extensive and dealt with the waiver, and the results were pretty good. Moreover, the Supremes had also ruled that defense counsel doesn't have an obligation to appeal unless told otherwise. See Roe v. Flores-Ortega, 528 U.S. 470 (2000). Still, if the defendant says "appeal," his counsel must. The issue here was whether the defendant actually said "appeal." That being so, the case has to be remanded to determine if the defendant had so instructed. In keeping with the current craze for poker, the 9th --Kleinfled -- concludes the opinion by playing this analogy: "Nevertheless, the client has the constitutional right...to bet on the possibility of winning the appeal and winning an acquittal, just as a poker player has the right to hold the ten and queen of hearts, discard three aces, and pray that when he draws three cards, he gets a royal flush.")