Robles

MEMORANDUM **

Petitioner Henry P. Robles appeals a judgment from the United States District Court for the Northern District of California denying his petition for a writ of habeas corpus. We reverse.

1. Robles contends that his trial lawyer provided ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), by failing to advise him of his right to file a direct appeal of his guilty plea in state court. The district court denied Robles’s pro se petition because he did not provide evidence that he had available non-frivolous grounds to be raised on appeal. Roe v. Flores-Ortega, 528 U.S. 470 , 120 S.Ct. 1029 , 145 L.Ed.2d 985 (2000), which both parties have cited as the controlling precedent for reviewing Ro *752 bles’s Strickland claim, forbids courts from requiring such a showing: “it is unfair to require a [pro se] defendant to demonstrate that his hypothetical appeal might have had merit before any advocate has ever reviewed the record in his case in search of potentially meritorious grounds for appeal. Rather, we require the defendant to demonstrate that, but for counsel’s deficient conduct, he would have appealed.”…

concurring in part and dissenting in part.

GRABER, Circuit Judge.

1. I concur in Parts 1 and 2.

2. I respectfully dissent from Part 3 because the equal protection claim does not “relate back” to the timely filed claim for ineffective assistance of counsel. Under Rule 15(c)(2), an amendment relates back only if the nonmoving party received “sufficient notice of the facts and claims giving rise to the proposed amendment.” Anthony v. Cambra, 236 F.3d 568, 576 (9th Cir.2000) (emphasis added).

As for notice of the claim, the original petition alleged various claims of ineffective assistance of counsel but did not include an equal protection claim. The petition attached two state filings as exhibits, both of which did refer to an equal protection claim. The natural inference to be drawn is that the petition intentionally omitted that claim.

Additionally, the facts underlying the two claims are not the same. The facts underlying the claims of ineffective assistance of counsel pertain to what the lawyer said and did, or failed to say and do. By contrast, the operative facts underlying the equal protection claim are the statutory provisions that create different requirements for…