Robert M. Miller v. Daniel J. McCarthy

Robert Miller appeals from the district court’s denial of his petition for a writ of habeas corpus. We reverse and remand for an evidentiary hearing.

I. Background.

Miller went to trial before a jury in a California superior court on a charge of rape. During the trial, on January 27,1970, he changed his plea to nolo contendere. He was represented by counsel. The state concedes, and the transcript of his trial shows, that the trial court did not tell Miller that he could receive a sentence of three years to life in the state prison, the sentence that he did receive.

Miller’s attorney did not file a notice of appeal, although Miller says that he paid his attorney to appeal. Miller himself did not prosecute an appeal, because, he says, he did not know how, and his counsel did not tell him how.

On February 25, 1975, Miller petitioned the district court for a writ of habeas corpus. On August 1, 1975, the district court denied relief on the ground that Miller had failed to exhaust his state remedies because he had failed to seek leave to file a late appeal under former Rule 31(a) of the California Rules of Court before that rule had been deleted effective January 1, 1972.

Acting…