No. 24-5436

David Fink v. California

Lower Court: California
Docketed: 2024-09-03
Status: Denied
Type: IFP
Response WaivedIFP
Tags: appellate-procedure constitutional-rights due-process fourteenth-amendment ineffective-assistance-of-counsel right-of-appeal
Latest Conference: 2024-11-01
Question Presented (from Petition)

(1. Should an appellant have a voice in his or her own appeal? If not, can s/he be procedurally barred for failing to raise it as here?

(2. Where, as here, the COA is aware that a large part of the lower court record is missing from the appeal; can "counsel hardly be said to have made a strategic choice when s/he ha[d] not yet obtained the texts which such a decision could be made." (United States v. Gray, 878 F.3d. 702, 712 (3rd Cir. 1989))?

(3. Should an appellate attorney include the entire lower court record in the appeal so s/he can make an informed tactical decision? And if s/he refuses to do so, should appellant be permitted to do so?

(4. "Ineffective Assistance of Appellate Counsel" ("IAAC") is conclusively established where s/he failed to raise: (a. "potentially meritorious claims: or (b. one's "stronger than those presented on appeal. (Nauven v. Curry, 736 F.3d. 1287, 1291 (9th Cir. 2013) and Hurles v. Ryan, 752 F.3d. 768, 783 (9th Cir. 2014)). Does the Fourteenth Amendment require the State to consider these facts when presented by an appellant during an appeal?

(5. If an attorney refuses to raise substantial constitutional claims on appeal, does a COA err by: (1. refusing to take judicial notice of its own records of the claims brought in pretrial mandamus petitions; or (2. consider the claims brought during the appeal by the appellant?

(6. If an attorney refuses to bring highly substantial claims here, does the substantial right of appeal require the reviewing COA to hear the voice of the appellant, so the substantial right of appeal is not reduced to a farce or a sham as on appeal?

Question Presented (AI Summary)

Should an appellant have a voice in their own appeal when the Court of Appeal appoints counsel who fails to raise substantial constitutional claims?

Docket Entries

2024-11-04
Petition DENIED.
2024-10-10
DISTRIBUTED for Conference of 11/1/2024.
2024-10-02
Waiver of right of respondent California to respond filed.
2024-08-05
Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed. (Response due October 3, 2024)

Attorneys

California
Kenneth Charles ByrneCalifornia Attorney General, Respondent
David Fink
David Fink — Petitioner