160 F.3d 534
98 Cal. Daily Op. Serv. 8121, 98 Daily JournalD.A.R. 11,305Lucio Flores ORTEGA, Petitioner-Appellant,v.Ernest C. ROE, Warden, Respondent-Appellee.
No. 97-17232.
United States Court of Appeals,Ninth Circuit.
Submitted Oct. 5, 1998.*Decided Nov. 2, 1998.

Ann H. Voris, Assistant Federal Defender, Fresno, CA, for petitioner-appellant.
Paul E. O'Connor, Deputy Attorney General, Sacramento, CA, for respondent-appellee.
Appeal from the United States District Court for the Eastern District of California;  Garland E. Burrell, District Judge, Presiding.  D.C. No. CV-95-05612-GEB.
Before:  BEEZER, HALL and RYMER, Circuit Judges.
BEEZER, Circuit Judge:


1
Lucio Flores Ortega appeals the denial of his petition for habeas corpus.  We address the question whether our opinion in United States v. Stearns, 68 F.3d 328 (9th Cir.1995), expressed a new rule barred from application in the present matter by Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).  We hold that Stearns did not express a new rule, rather it was an application of the rule in Lozada v. Deeds, 964 F.2d 956 (9th Cir.1992).  We have jurisdiction pursuant to 28 U.S.C. § 2253 and we reverse.


2
* A


3
Petitioner pled guilty to second degree murder in a California Superior Court on October 13, 1993.  At the plea hearing, petitioner was represented by a public defender.  During the hearing the public defender wrote in her file "bring appeal papers."   On March 24, 1994 petitioner attempted to file a notice of appeal which was rejected as untimely.


4
Petitioner filed a state court petition for a writ of habeas corpus on the ground that trial counsel was ineffective for failing to file a timely notice of appeal.  Petitioner subsequently exhausted his state court remedies.


5
On July 27, 1995, petitioner filed a federal petition for habeas corpus.  Respondent answered on November 17, 1995.  The matter was referred to a magistrate judge, who held an evidentiary hearing on the limited issue of the credibility of petitioner's assertions that his state trial counsel promised to file a notice of appeal on his behalf.


6
After the hearing, the magistrate judge made the following findings:  Petitioner "had little or no understanding" of what an appeal meant or the appeals process.  Petitioner had not proved that his counsel had promised to file a notice of appeal.  Petitioner did not consent to counsel's failure to file a notice of appeal.  The magistrate judge considered whether our opinion in Stearns applied to petitioner's claims but ultimately concluded that petitioner was not entitled to relief under Stearns on the theory that Stearns stated a "new rule" which could not be applied retroactively under Teague v. Lane.


7
The district court adopted the magistrate judge's recommendation that the petition be denied.  The court subsequently granted petitioner a certificate of probable cause and this timely appeal followed.

B

8
We review de novo the denial of a § 2254 petition.  See Eslaminia v. White, 136 F.3d 1234, 1236 (9th Cir. 1998).  Stearns, 68 F.3d at 329.   The district court's factual findings are reviewed for clear error.  United States v. Cruz-Mendoza, 147 F.3d 1069, 1072 (9th Cir.1998).


9
To establish ineffective assistance of counsel, a petitioner must prove that:  (1) counsel's performance was ineffective and (2) the ineffective performance prejudiced the defense.  See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).  In Stearns, we held that failure to appeal after a plea agreement is ineffective assistance of counsel without a specific showing of prejudice.  Stearns, 68 F.3d at 329-30.   A petitioner "need only show that he did not consent to the failure to file."  Id. at 330.   The magistrate judge found that petitioner did not consent to the failure to file a notice of appeal.  This finding, reviewed for clear error, resolves the application of Stearns in petitioner's favor.

II

10
Resolution of the present matter hinges on whether we expressed in Stearns a "new rule" as defined by Teague.  Teague requires a three-step analysis.  First, the court must determine the date on which the petitioner's conviction became final.  See Caspari v. Bohlen, 510 U.S. 383, 390, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994).  Second, it must "[s]urvey[ ] the legal landscape as it then existed," Graham v. Collins, 506 U.S. 461, 468, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993), to "determine whether a state court considering [the petitioner's] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule ... was required by the Constitution."  Saffle v. Parks, 494 U.S. 484, 488, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990).  Finally, "if the court determines that the habeas petitioner seeks the benefit of a new rule, the court must consider whether the relief sought falls within one of the two narrow exceptions to nonretroactivity."  Lambrix v. Singletary, 520 U.S. 518, ----, 117 S.Ct. 1517, 1524-25, 137 L.Ed.2d 771 (1997).


11
Those exceptions apply where either (1) "the rule places a class of private conduct beyond the power of the State to proscribe ... or addresses a substantive categorical guarante[e] accorded by the Constitution;" or (2) the rule announces a "watershed rule[ ] of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding."  Graham, 506 U.S. at 477-78, 113 S.Ct. 892 (internal quotations omitted).  Watershed rules are those which are "central to an accurate determination of innocence or guilt."  Teague, 489 U.S. at 313, 109 S.Ct. 1060.   The exception is "meant to apply only to a small core of rules requiring observance of those procedures that ... are implicit in the concept of ordered liberty."  Graham, 506 U.S. at 478, 113 S.Ct. 892 (internal quotations omitted).


12
Steps one and three of the Teague analysis are clearly resolved in respondent's favor.  Stearns postdates petitioner's case.  Petitioner was sentenced on November 10, 1993, and had 60 days within which to file a notice of appeal.  Stearns was filed on October 12, 1995.  Additionally, Stearns does not fit under the narrow exceptions to Teague reserved for rules that go to the fundamental fairness of the adjudicative process.


13
The second element of the Teague analysis, however, requires reversal.  A "new rule," as contemplated by Teague, is one which " 'breaks new ground,' 'imposes a new obligation on the States or the Federal Government,' or 'was not dictated by precedent existing at the time the defendant's conviction became final.' "  Snook v. Wood, 89 F.3d 605, 612 (9th Cir.1996) (quoting Teague, 489 U.S. at 301, 109 S.Ct. 1060).


14
Stearns tracks our opinion in Lozada v. Deeds, 964 F.2d 956 (9th Cir.1992), which predates petitioner's conviction.  In Lozada, we held that " 'prejudice is presumed under Strickland if it is established that counsel's failure to file a notice of appeal was without the petitioner's consent.' "  Stearns, 68 F.3d at 329 (quoting Lozada, 964 F.2d at 958) (emphasis in original).  In Stearns, we reasoned that Lozada "would automatically demand reversal in this case, but for one distinction[:] The judgement in this case was entered after a plea rather than after a trial."  Id. at 330.   We conclude that Stearns was merely an application of the rule in Lozada.   Petitioner does not rely on a new rule and his petition is not barred by Teague.III


15
The district court is instructed to issue a conditional writ releasing Ortega from state custody unless the state trial court vacates and reenters petitioner's judgment of conviction and allows a fresh appeal.  We REVERSE and REMAND.



*
 The panel unanimously finds this case suitable for decision without oral argument.  Fed. R.App. P. 34(a);  Ninth Circuit Rule 34-4


