United States of America, Plaintiff-appellee, v. Chikannene Ofodum, Defendant-appellant, 132 F.3d 41 (9th Cir. 1997)

MEMORANDUM^* 

Federal prisoner Chikannene Ofodum appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion challenging his guilty plea conviction and 121-month sentence for conspiring to import heroin, in violation of 21 U.S.C. § 963. We review de novo both the district court's denial of a section 2255 motion and claims of ineffective assistance of counsel. See United States v. Stearns, 68 F.3d 328, 329 (9th Cir. 1995). We reverse and remand for further proceedings.

Ofodum contends, inter alia, that his counsel was ineffective because he failed to file a direct appeal. This contention may have merit because counsel did not file a direct appeal. Although Ofodum waived his right to appeal as part of his plea agreement, that waiver is unenforceable because the district court twice told Ofodum at sentencing that he had a right to appeal his sentence and the government did not object to those erroneous statements. See United States v. Otis, 127 F.3d 829, 834 (9th Cir. 1997) (per curiam); United States v. Buchanan, 59 F.3d 914, 917-18 (9th Cir. 1995).

Thus, unless Ofodum consented to waive his appeal, counsel's failure to file a notice of appeal constitutes ineffective assistance of counsel and prejudice is presumed. See id. at 330; see also Lozada v. Deeds, 964 F.2d 956, 958-59 (9th Cir. 1992). Accordingly, we reverse the district court's order denying Ofodum's section 2255 motion on this claim and remand so that the district court can determine whether Ofodum consented to the failure to file the notice of appeal. See Stearns, 68 F.3d at 330. We decline to address Ofodum's other contentions because they may be raised in the direct appeal with the assistance of counsel. See United States v. Horodner, 993 F.2d 191, 194 (9th Cir. 1993).

REVERSED and REMANDED.