Velasquez-Lopez v. Clarke

Velasquez-Lopez was indicted on 33 counts of taking indecent liberties with a child, in

violation of Code § 18.2-370.1. Catherine Lea was appointed to represent Velasquez-Lopez, a

native of El Salvador who does not speak English. She communicated with him through the aid

of a court-appointed interpreter who was fluent in the Spanish language. Due to Lea’s concerns

regarding Velasquez-Lopez’s mental competency and difficulty with the English language, the

Commonwealth and Velasquez-Lopez submitted expert opinions to the circuit court regarding

his mental status. After hearing evidence, the circuit court ruled that Velasquez-Lopez “suffers

from no mental deficits” and “no indication of any disability in terms of his ability to process

information.” In light of Velasquez-Lopez’s difficulty with the English language, however, the

circuit court directed counsel and the interpreter to meet with Velasquez-Lopez for up to ten

additional hours, which they did. Subsequently, Velasquez-Lopez pled guilty to all 33 counts.

The circuit court sentenced him to a term of 156 years’ imprisonment, with all but 18 years

suspended, and entered final judgment on September 21, 2010.

Following the sentencing hearing, Velasquez-Lopez sent a hand-written letter to the

circuit court stating he felt his “lawyer did not do her job,” listing various complaints regarding

counsel’s performance, and asking for a reduction in his sentence. The circuit court treated the

correspondence as a motion to reduce the sentence and denied the motion by order dated

September 30. By letter to the circuit court dated October 4, Velasquez-Lopez asked that his

case be “re-opened” stating that “the lawyer [his] brothers got can work on the case.” He told

the circuit court that he “was not comfortable with [his] lawyer,” believed “the lawyer [his]

brothers got can help [him] better,” and that “[his] brothers tell [him] that the lawyer they got can help me only if the case is re-opened.”1

Lea filed a notice of appeal on behalf of Velasquez-Lopez on October 7, 2010. The

Court of Appeals dismissed his case on January 28, 2011, for failure to file a petition for appeal.

B. Habeas Proceedings

Velasquez-Lopez filed an amended petition for a writ of habeas corpus against Harold

Clarke, the Director of the Department of Corrections. He alleged he “was deprived of his right

to effective assistance of counsel under the Sixth Amendment” because his counsel failed to “prosecute” his appeal.2 Clarke filed a motion to dismiss asserting that counsel for Velasquez

Lopez was not deficient for failing to file a petition for appeal because Velasquez-Lopez

informed his counsel that he had obtained new counsel who would file his appeal. 1 The letters to the circuit court were written in English. At the hearing in the habeas proceedings, Velasquez-Lopez testified that a cellmate at the Culpeper County jail who speaks Spanish wrote letters in English for him. 2 Velasquez-Lopez asserted additional grounds in his petition that are not before us on appeal.

3

At an evidentiary hearing conducted by the circuit court on the habeas application,

Velasquez-Lopez testified that after his sentencing, he spoke to Lea and asked her to “reopen”

his case, which she agreed to do. Although Velasquez-Lopez denied telling Lea not to file an

appeal, he testified that he informed Lea “to keep [his case] open so that I can have another

attorney help me.” Velasquez-Lopez stated he wrote to Lea and asked her to make his file

available to new counsel. He testified that he never gave Lea the name of new counsel and, in

fact, did not have new counsel at that time or believe that his brothers had obtained new counsel

for him at that time. Although Velasquez-Lopez testified he wanted a different result in his case,

he stated repeatedly he did not want Lea to change the result.

Lea testified she received a letter from Velasquez-Lopez dated October 4, 2010, in which he informed Lea that he did “not feel satisfied with her work.”3 In the letter, Velasquez-Lopez

stated that his “brothers want to do something better for me but I would like to ask you if you

could re-open the case. They want to appeal my case but we need you to open the case so that

another attorney can do something for me.” Lea testified that upon receipt of the letter, she

visited Velasquez-Lopez at the Culpeper County jail on October 6, 2010, where he informed Lea

that he did not want Lea to file an appeal for him. According to Lea, Velasquez-Lopez “clearly

told me he did not want me to work anymore on his case.” She memorialized his instructions on

the letter with the following note: “10/6/10 – visited JCV-L @ Culpeper Jail informed he did

NOT want me to file appeal for him.” (Emphasis in original.)

Lea testified that on October 7, 2010, she received a telephone call from a brother of

Velasquez-Lopez. She memorialized the conversation in her file with the following note:

“10/7/10 – call from Mr. Mario Lopez, brother does want me to visit again & file.” Lea also

3 The letter was written in Spanish and translated by Lea’s office translator.

4

made a notation of her review of the file on October 7 with her mentor attorney. Lea explained

that she filed a notice of appeal for Velasquez-Lopez on that date because she was “informed that

they needed to preserve the time.” Subsequent to filing the notice, Lea received a letter from

Velasquez-Lopez, dated October 8, 2010, in which he asked Lea “to give my new lawyer any

paper work that he request[s].”

Lea testified she did not file a petition for appeal because Velasquez-Lopez informed her

that he did not want her to handle the appeal and because both he and his brother informed her he

had new counsel. As she explained,

[N]ot only did I have a discussion with Mr. Velasquez-Lopez that he did not want me to do the paper-work for the appeal document but first his brother and then he, himself, in writing informed me that he had an attorney for whom I was to prepare the file and he would get in contact with me.

Following the hearing, the circuit court issued a letter ruling stating that it had “fully

considered the testimony of the witnesses and the arguments of counsel” and had “observed the

witnesses and their demeanor and made determinations as to their credibility.” The circuit court

found that Velasquez-Lopez “had clear[ly] conveyed his wishes that he did not want [Lea] to file

an [a]ppeal for him.” Based on that finding, the circuit court ruled that Lea “was not deficient

for failing to file a [p]etition for [a]ppeal” and therefore dismissed the petition for writ of habeas

corpus.

II. ANALYSIS Velasquez-Lopez contends the habeas court’s finding that he “had clear[ly] conveyed his wishes that he did not want [Lea] to file an [a]ppeal for him” was plainly wrong. “The factual

findings of the [circuit court] in a habeas corpus hearing are presumed to be correct and will be

upheld by us unless plainly wrong or unsupported by credible evidence.” Abbott v. Peyton, 211

5

Va. 484, 486, 178 S.E.2d 521, 523 (1971); see also Fuentes v. Clarke, 290 Va. ___, ____, ____

S.E.2d ___, ___ (October 29, 2015) (habeas court’s findings of historical fact are entitled to

deference and binding unless plainly wrong or without evidence to support them); Dominguez v.

Pruett, 287 Va. 434, 440, 756 S.E.2d 911, 914 (2014) (same); compare Zemene v. Clarke, 289

Va. 303, 307, 768 S.E.2d 684, 686 (2015) (habeas court’s decision to dismiss petition is

reviewed de novo where dismissal is “based upon a review of the pleadings without an

evidentiary hearing”).

Following the analysis set forth in Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000), we

have held that the two-part test enunciated in Strickland v. Washington, 466 U.S. 668, 688, 694

(1984), applies to claims of ineffective assistance of counsel when a convicted defendant alleges

that counsel failed to file a direct appeal. Miles v. Sheriff, 266 Va. 110, 114, 581 S.E.2d 191,

193 (2003). Thus, “a convicted defendant ‘must show (1) that counsel’s representation fell

below an objective standard of reasonableness, and (2) that counsel’s deficient performance

prejudiced the defendant.’” Id. (quoting Roe, 528 U.S. at 476-77). “‘[W]hen counsel’s

constitutionally deficient performance deprives a defendant of an appeal that he otherwise would

have taken, the defendant has made out a successful ineffective assistance of counsel claim

entitling him to an appeal.’” Jenkins v. Director, Va. Ctr. for Behav. Rehab., 271 Va. 4, 17, 624

S.E.2d 453, 461 (2006) (quoting Roe, 528 U.S. at 484). “In this circumstance, prejudice is

generally presumed.” Id.

With specific regard to the performance prong of the Strickland test at issue here, the

Supreme Court of the United States in Roe recognized two scenarios in which a convicted

defendant may raise a claim of ineffective assistance of counsel for failure to file a direct appeal.

First, a lawyer acts in a professionally unreasonable manner when the lawyer “disregards specific

6

instructions from the defendant to file a notice of appeal.” Roe, 528 U.S. at 477. This is so

because “filing a notice of appeal is a purely ministerial task, and the failure to file reflects

inattention to the defendant's wishes.” Id. Second, a lawyer may act in a professionally

unreasonable manner when the lawyer fails to consult with the defendant regarding an appeal

and there is a constitutionally-imposed duty to do so. A constitutional duty to consult may arise

when “a rational defendant would want to appeal (for example, because there are nonfrivolous

grounds for appeal)” or when “this particular defendant reasonably demonstrated to counsel that he was interested in appealing.” Id. at 480.4

Velasquez-Lopez seeks to establish a claim for ineffective assistance of counsel based on the first scenario – that Lea failed to follow his instructions to file an appeal.5 As the Supreme

Court stated in Roe, “[c]ounsel performs in a professionally unreasonable manner only by failing

to follow the defendant's express instructions with respect to an appeal.” Id. at 478 (emphasis

added). On the other hand, “a defendant who explicitly tells his attorney not to file an appeal

plainly cannot later complain that, by following his instructions, his counsel performed

deficiently.” Roe, 528 U.S. at 477 (emphasis in original).

We find no merit in Velasquez-Lopez’s contention that the circuit court’s finding of fact

was plainly wrong. Velasquez-Lopez was required to prove his claim that Lea disregarded his

4 In making this determination, courts should consider all relevant factors in a given case. “Although not determinative, a highly relevant factor in this inquiry will be whether the conviction follows a trial or a guilty plea, both because a guilty plea reduces the scope of potentially appealable issues and because such a plea may indicate that the defendant seeks an end to judicial proceedings. Even in cases when the defendant pleads guilty, the court must consider such factors as whether the defendant received the sentence bargained for as part of the plea and whether the plea expressly reserved or waived some or all appeal rights.” Roe, 528 U.S. at 480. 5 Although Roe involved the failure to file a notice of appeal, we believe the same analysis applies to the issue of whether counsel was deficient for failing to file a petition for appeal.

7

instructions to prosecute his appeal. See Nolan v. Peyton, 208 Va. 109, 112, 155 S.E.2d 318,

321 (1967). The circuit court heard testimony from both Velasquez-Lopez and Lea, considered

the evidence presented, and found that no such instructions were given. To the contrary, the

circuit court found that Velasquez-Lopez “clear[ly] conveyed his wishes that he did not want

[Lea] to file an [a]ppeal for him.” There was credible evidence to support this finding. Lea

testified that Velasquez-Lopez told her he did not want her to file the appeal for him. Velasquez

Lopez wrote letters to the circuit court and Lea stating that he was dissatisfied with Lea’s

assistance and that his brothers had retained a new attorney for him. Additionally, Velasquez

Lopez testified at the hearing that he only wanted Lea to “reopen” the case so another attorney

could help him.

Velasquez-Lopez argues that his difficulty with the English language and lack of

comprehension of the criminal proceedings rendered his instructions to counsel unclear and that such ambiguity should be resolved in his favor.6 We decline Velasquez-Lopez’s invitation to

depart from our standard of review and examine the evidence for ambiguities or inconsistencies.

Velasquez-Lopez was provided with a court-appointed interpreter to address his difficulties with

the English language. Furthermore, Lea testified that despite her initial concerns with

Velasquez-Lopez’s mental status, his understanding of the criminal process increased to the

6 Although Velasquez-Lopez also contends that the interpreter was not present when Lea visited him at the jail on October 6, there is no support in the record for this contention. To the contrary, Lea testified that the interpreter was present during all of her meetings with VelasquezLopez at the jail except for “the first one or two” and Velasquez-Lopez did not present evidence otherwise. It was, of course, Velasquez-Lopez’s burden to prove any such contention. Nolan, 208 Va. at 112, 155 S.E.2d at 321.

8

point that she was no longer concerned by the time he pled guilty.7 Therefore, we cannot say that the circuit court’s finding was plainly wrong or unsupported by credible evidence.

For the foregoing reasons, we will affirm the judgment of the circuit court.