United States v. Fabian-Baltazar, No. 15-16115 (9th Cir. 2019)
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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.
Court Description: 28 U.S.C. § 2255 On remand from the Supreme Court, the panel vacated the district court’s order denying Abel Heriberto Fabian- Baltazar’s 28 U.S.C. § 2255 motion claiming, among other things, that trial counsel rendered ineffective assistance by failing to file a notice of appeal; and remanded for further proceedings. This court originally affirmed, holding that the district court did not err by enforcing Fabian-Baltazar’s express waiver of his right to collaterally attack his sentence. The Supreme Court vacated this court’s judgment and remanded for further consideration in light of Garza v. Idaho, 139 S. Ct. 738 (2019), which held that an attorney provides ineffective assistance by failing to file a notice of appeal after a client request that the attorney do so, even if that client has signed an appeal waiver. On remand from the Supreme Court, the government declined to enforce Fabian-Baltazar’s collateral attack waiver, so this court analyzed the case as involving only an appeal waiver. The panel held that the district court, on remand, should determine whether Fabian-Baltazar 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.
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