Briseno

MEMORANDUM **

Michael W. Briseno appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition asserting ineffective assistance of counsel. The parties are familiar with the facts. We do not repeat them except as necessary to understand this disposition. We have jurisdiction pursuant to 28 U.S.C. § 2253 . Under AEDPA, we may grant a writ of habeas corpus only if petitioner shows that the state court proceeding resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States. 28 U.S.C. § 2254 (d).

To prevail on a claim of ineffective assistance of counsel, the defendant must show that counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694 , 104 S.Ct. 2052 .

An attorney must take “reasonable…

concurring.

I concur with the conclusion reached in the Memorandum Disposition that Briseno is entitled to an opportunity to appeal his conviction. Counsel’s failure to obtain a certifícate of probable cause prejudiced Briseno. The evidence of record shows that shortly after his sentencing Briseno desired to appeal his conviction and obtain a new trial. Prejudice is further shown by the existence of non-frivolous grounds for challenging Briseno’s conviction, namely that the failure to advise Briseno of the fifteen-year mandatory minimum sentence constituted ineffective assistance of counsel. In view of these factors, it is reasonably likely that Briseno would have appealed his conviction on that issue but for counsel’s failure to obtain a certificate of probable cause.

concurring in part and dissenting in part.

I concur in the section of the Memorandum Disposition affirming the district court’s dismissal of Briseno’s ineffective assistance of counsel claim with respect to the competency hearing. I respectfully dissent on the remainder of the claims and adopt the district court’s well reasoned analysis.

Briseno claims that his counsel was ineffective for failing to advise him of the mandatory minimum of fifteen years and that he somehow misapprehended the scope of his potential sentence and thought that he might be eligible for parole. Even if counsel was ineffective in not advising Briseno of the mandatory minimum, Briseno has failed to meet the prejudice prong of Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984).

In light of the 32 counts of sexual misconduct with children, the trial court was quite clear as to the scope of the penalty and advised Briseno as to the maximum penalty. The trial court also was clear that Briseno was “not eligible for probation in this matter,” an understanding confirmed by Briseno. The trial court disabused Briseno of any notion that he would not be sent to prison because the jury…

dissenting in part.

I dissent from the holding that it was not ineffective assistance of counsel to fail to request a certificate of probable cause on the issue of Briseno’s competency to enter a plea of guilty.

In spite of counsel’s pervasive impression that throughout the representation, Briseno was not able to rationally consider the objective consequences of his actions, not able to assist in his own defense, and was in denial as well as delusional, counsel failed to take any steps to obtain a certificate of probable cause on the issue of his competency, which is a predicate to ap *6 pealing the issue. The deadline for filing such certificate had passed when appellate counsel took over.

Briseno’s possible right to a competency hearing was not appealed under pertinent California statutes. California law applicable to Briseno’s case provided that “[i]f counsel informs the court that he or she believes the defendant is or may be mentally incompetent, the court shall order that the question of the defendant’s mental competence is to be determined in a hearing ...” CaLPenal Code § 1368(b) (1999) (emphasis added). The hearing is to be held in the form of a separate trial by court…

FILED

NOT FOR PUBLICATION DEC 20 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S . CO UR T OF AP PE A LS

FOR THE NINTH CIRCUIT

MICHAEL W. BRISENO, No. 07-16983

Petitioner - Appellant, D.C. No. CV-04-01458-PJH

v.

MEMORANDUM *

JEANNE S. WOODFORD,

Respondent - Appellee.

Appeal from the United States District Court for the Northern District of California Phyllis J. Hamilton, District Judge, Presiding

Argued and Submitted May 14, 2010 San Francisco, California

Before: HUG and McKEOWN, Circuit Judges, and FAWSETT, Senior District Judge.**

Michael W. Briseno appeals the district court's denial of his 28 U.S.C. y

2254 habeas corpus petition asserting ineffective assistance of counsel. The parties

are familiar with the facts. We do not repeat them except as necessary to

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Patricia C. Fawsett, Senior United States District Judge for the Middle District of Florida, sitting by designation. understand this disposition. We have…