#### Lucio 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.

*535Ann H. Voris, Assistant Federal Defender, Fresno, CA, for petitioner-appellant.

Paul E. O’Connor, Deputy Attorney General, Sacramento, CA, for respondent-appel-lee.

Before: BEEZER, HALL and RYMER, Circuit Judges.

*

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

BEEZER, Circuit Judge:

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 *Steams*did not express a new rule, rather it was an application of the rale in *Lozada v. Deeds,*964 F.2d 956 (9th Cir.1992). We have jurisdiction pursuant to 28 U.S.C. § 2253 and we reverse.

I

A

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.

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.

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.

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 *Steams*applied to petitioner’s claims but ultimately concluded that petitioner was not entitled to relief under *Steams*on the theory that *Steams*stated a “new rale” which could not be applied retroactively under *Teague v. Lane.*

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

We review de novo the denial of a § 2254 petition. *See Eslaminia v. White,*136 F.3d 1234, 1236 (9th Cir.1998). *Steams,*68 F.3d *536at 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).

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 *Steams,*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 *Steams*in petitioner’s favor.

II

Resolution of the present matter hinges on whether we expressed in *Steams*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).

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).

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

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).

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 *Steams,*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 *Steams*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.*

*537III

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.