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agreeing that a California claim for false advertising is "'substantially congruent'" to a false advertising claim under the Lanham Act
Summary of this case from Caltex Plastics, Inc. v. Shannon Packaging Co.Opinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Defendant moved to vacate sentence imposed following his drug convictions, alleging that his counsel had been ineffective in failing to pursue a direct appeal. The United States District Court for the Central District of California, J. Spencer Letts, J., denied motion. Defendant appealed. The Court of Appeals held that district court's failure to make any findings regarding factors it was required to consider with respect to ineffective assistance claim required remand.
Vacated and remanded.
Appeal from the United States District Court for the Central District of California J. Spencer Letts, District Judge, Presiding.
Before CANBY, KOZINSKI and RYMER, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
Jose A. Angulo-Hernandez appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion challenging his sentence and convictions by guilty plea to various drug-related offenses. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
Angulo-Hernandez contends that his trial counsel was ineffective for failing to pursue a direct appeal. We review the district court's denial of a section 2255 motion de novo and its factual findings for clear error. United States v. Navarro, 160 F.3d 1254, 1255 (9th Cir.1998), cert. denied, 527 U.S. 1011, 119 S.Ct. 2354, 144 L.Ed.2d 249 (1999).
Page 653.
In Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), the United States Supreme Court expressly set forth the factors to be considered in determining whether counsel was ineffective for failing to file a notice of appeal on the defendant's behalf. See id. at 478-81 (concluding that the district court must determine whether counsel failed to follow the defendant's express instructions concerning an appeal; whether counsel consulted or reasonably chose not to consult with the defendant regarding an appeal; and whether there is a reasonable probability that, but for counsel's deficient performance, the defendant would have timely appealed).
Because the district court here did not make any findings addressing these factors and the record is insufficient to allow us to do so, we vacate the district court's denial of the section 2255 motion and remand for further proceedings consistent with Flores-Ortega. See id. at 487.
VACATED and REMANDED.