Flores-Ortega

MEMORANDUM **

Lucio Flores-Ortega (Flores) appeals the district court’s denial of his petition for a writ of habeas corpus, after remand of the case from the United States Supreme Court. See Roe v. Flores-Ortega, 528 U.S. 470, 487 , 120 S.Ct. 1029 , 145 L.Ed.2d 985 (2000). We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we reverse.

The Supreme Court instructed the district court, on remand, to determine: (1) whether the public defender had a duty to consult with Flores regarding the filing of an appeal, either because there were potential grounds for appeal or because he expressed interest in appealing; (2) if a duty to consult existed, whether the public defender satisfied her duty; and (3) if the public defender breached her duty to consult, whether Flores was prejudiced as a result. Id.; see Flores Ortega v. Roe, 209 F.3d 1122 (9th Cir.2000). On remand, the district court found that, although the public defender did not consult with Flores regarding the filing of an appeal, she had no duty to do so because she did not believe that he had a meritorious ground for appeal, and, if a consultation had taken place, she would have advised Flores against the filing of an…

dissenting.

I respectfully dissent. Although a district court’s denial of a § 2254 petition is reviewed de novo, the district court’s factual findings are reviewed for clear error. See Paradis v. Arave, 240 F.3d 1169, 1175-76 (9th Cir.2001); Solis v. Garcia, 219 F.3d 922, 926 (9th Cir.2000); Henry v. Kernan, 197 F.3d 1021, 1026 (9th Cir.1999); Weaver v. Thompson, 197 F.3d 359, 362 (9th Cir.1999). The majority correctly notes that denial of a habeas petition is reviewed de novo, but neglects to address the subsidiary rule that the district court’s findings of fact are reviewed for clear error.

A lawyer has a duty to consult with her client about an appeal in two circumstances, “when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably *607 demonstrated to counsel that he was interested in appealing.” Roe v. Flores-Ortega, 528 U.S. 470, 480 , 120 S.Ct. 1029 , 145 L.Ed.2d 985 (2000). There were no nonMvolous grounds for an appeal of petitioner’s conviction, 1 so this appeal of his habeas corpus petition turns on whether the district…