Opinion
3:09-cr-0046-LRH-RAM.
October 18, 2011
ORDER
Before the court is defendant Gilberto Lopez-Monjaraz's ("Monjaraz") motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Doc. #22.
Refers to the court's docket number.
I. Facts and Procedural History
II. Discussion
21 U.S.C. §§ 84128 U.S.C. § 2255 28 U.S.C. § 2255 28 U.S.C. § 2255
In his motion for relief under § 2255, Monjaraz argues that his counsel was constitutionally ineffective because his counsel failed to file a notice of appeal after he requested an appeal be filed and failed to raise an Apprendi challenge relating to the amount of methamphetamine which resulted in a higher base sentencing guideline range. See Doc. #22.
The Sixth Amendment to the Constitution provides that criminal defendants "shall enjoy the right to have the assistance of counsel for his defense." U.S. Const. Amend. VI. To establish ineffective assistance of counsel, a petitioner must show that his counsel's performance was deficient, and that petitioner was prejudiced as a result of counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). In determining whether counsel's performance was deficient, the court must examine counsel's overall performance, both before and at trial, and must be highly deferential to the attorney's judgments." Quintero-Barraza, 78 F.3d at 1348 (citing Strickland, 466 U.S. at 688-89) (internal quotations omitted). Once a petitioner has established that counsel's performance was deficient, the petitioner "must then establish that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.
1. Failure to File A Notice of Appeal
Any attorney who "disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable." Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000). In his motion, Monjaraz contends that he requested his attorney file a notice of appeal and that the attorney failed to do so. See Doc. #22.
When presented with a defendant who claims that he ordered his attorney to file an appeal, the court has two options. First, "the district court can hold an evidentiary hearing to decide whether petitioner's allegation is true, and if it is, vacate and re-enter the judgment, allowing the appeal to proceed." United States v. Sandoval-Lopez, 409 F.3d 1193, 1198 (9th Cir. 2004). Second, "if the state does not object, the district court can vacate and re-enter judgment without a hearing and allow the appeal to proceed, assuming without deciding that the petitioner's claim is true." Id.
Here, the government does not object to vacating and re-entering the judgment. Therefore, the court shall grant Monjaraz's motion as to this issue, vacate the judgment and re-enter it to allow Monjaraz an opportunity to file an appeal.
2. Apprendi Challenge
After reviewing the documents and pleadings on file in this matter, the court finds that Monjaraz has failed to establish that his counsel's performance was constitutionally ineffective as it relates to raising an Apprendi challenge concerning the amount of methamphetamine used in his sentencing calculations. First, Monjaraz fails to provide any basis for his claim that he was entitled to an Apprendi challenge related to the amount of methamphetamine. Second, he fails to identify on which grounds his counsel could have raised such a challenge or that such a challenge would have been sustained in light of his acknowledgment in both the plea agreement and the plea hearing that at the time of his arrest he had in his possession over 5,000 grams of methamphetamine. Therefore, the court finds that Monjaraz has failed to establish that his claims are anything but frivolous. Accordingly, the court shall deny his motion to vacate, set aside, or correct sentence as to this issue.
IT IS THEREFORE ORDERED that defendant's motion to vacate or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. #22) is GRANTED in-part and DENIED in-part in accordance with this order.
IT IS FURTHER ORDERED that the clerk of court shall VACATE and RE-ENTER the judgment in this action (Doc. #20).
IT IS SO ORDERED.