United States v. Fabian-Baltazar, No. 15-16115 (9th Cir. 2019)Annotate this Case
On remand from the Supreme Court, the Ninth Circuit vacated the district court's order denying defendant's 28 U.S.C. 2255 motion. Defendant alleged that trial counsel rendered ineffective assistance by failing to file a notice of appeal. In this case, the government never had the opportunity to challenge defendant's assertion, because both the district court's and this court's prior rulings held that the collateral attack waiver nonetheless barred the section 2255 motion.
Therefore, the panel held that the district court, on remand, should determine whether defendant expressly instructed his attorney to file a notice of appeal, and if not, whether counsel failed to consult, and if so, whether that failure constituted deficient performance.
This opinion or order relates to an opinion or order originally issued on December 14, 2017.