Appeal from the United States District Court for the District of Oregon. D.C. No. CV-94-06057-MRH. Michael R. Hogan, District Judge, Presiding.
Before: Mary M. Schroeder, Stephen Reinhardt, and Ferdinand F. Fernandez, Circuit Judges. Opinion by Judge Fernandez.
FERNANDEZ, Circuit Judge:
Richard Edward Stearns pled guilty to two counts of bank robbery. 18 U.S.C. § 2113(a). He was sentenced and did not appeal, but about two years later he filed a petition which alleged that his attorney had failed to file a notice of appeal, as requested. 28 U.S.C. § 2255. The district court denied the petition, and Stearns appeals. We reverse and remand for further proceedings.
Stearns was charged with the robbery of a bank in Medford, Oregon. He pled guilty to that charge, but before his sentencing he was charged with the further crime of robbing a bank in Bonita, California. That case was transferred to the federal district court in Oregon, and he pled guilty to that charge also.
On February 5, 1992, the district court sentenced him on both charges, and no appeal followed. However, on February 1, 1994, Stearns filed a petition under 18 U.S.C. § 2255 in which he alleged, among other things, that his attorney was ineffective because she "failed to advise him of his right to appeal his sentence, and failed to file a timely notice of appeal." He added that he "had expressed his desire so to do to counsel." In a letter to Stearns, counsel had indicated that her practice was to discuss appeals with her client but that she had no "independent recollection one way or another about discussing your right of appeal with you at the time of sentencing."
The district court denied Stearns' petition because "petitioner told the court [at sentencing] he was satisfied with his attorney, the court advised the petitioner of his right to appeal and how to pursue it, and petitioner has refused to waive the attorney/client privilege thereby depriving the government of responding to the issue." Stearns appealed and we reverse.
JURISDICTION AND STANDARD OF REVIEW
The district court had jurisdiction pursuant to 28 U.S.C. § 2255. We have jurisdiction pursuant to 28 U.S.C. § 1291.
We review the district court's denial of a 28 U.S.C. § 2255 motion de novo. United States v. Roberts, 5 F.3d 365, 368 (9th Cir. 1993). We review the district court's findings of fact for clear error. Id. We review the district court's resolution of claims of ineffective assistance of counsel de novo. See United States v. Horodner, 993 F.2d 191, 194 (9th Cir. 1993).
Because Stearns' claim is that counsel was ineffective, we start with the familiar requirement that he must show: (1) "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," and (2) "that the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). We have previously applied those elements to a claim that counsel improperly failed to file a notice of appeal.
In Lozada v. Deeds, 964 F.2d 956 (9th Cir. 1992), the petitioner had been convicted in the state courts of Nevada. He sought habeas corpus relief in which he claimed that counsel had ...