Opinion
No. CR-06-00736-04-PHX-DGC, No. CV-07-2585-PHX-DGC (BPV).
December 21, 2009
ORDER
Reynaldo Moreno-Andrade has filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255. Dkt. #1. United States Magistrate Judge Bernardo P. Velasco has issued a report and a recommendation that the motion be granted in part and denied in part ("R R"). Dkt. #2. The United States and Moreno-Andrade have both filed responses to the R R, but neither party has objected to the R R. Dkt. ##4, 17.
The Court has reviewed the portion of the R R recommending that relief be granted, and finds it well taken. Under United States v. Sandoval-Lopez, 409 F.3d 1193 (9th Cir. 2004), Moreno-Andrade's counsel's failure to file an appeal at Moreno-Andrade's request amounts to ineffective assistance of counsel, and this Court must grant the motion to vacate and re-enter judgment against Moreno-Andrade in criminal case CR-06-00736-PHX-DGC so that a timely appeal may be taken. See id. at 1198-99 (stating that "ineffective assistance of counsel" is a term of art and does not mean incompetence of counsel). Because the government does not object to the re-entry of judgment for this purpose, the Court concludes that no hearing is necessary.
Judge Velasco also recommends that the Court deny relief on grounds three and four of Moreno-Andrade's motion. The parties have not objected to this recommendation, which relieves the Court of its obligation to review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); Thomas v. Arn, 474 U.S. 140, 149 (1985) ("[Section 636(b)(1)] does not . . . require any review at all . . . of any issue that is not the subject of an objection."); Fed.R.Civ.P. 72(b)(3) ("The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.").
The Court will accept the R R and grant Moreno-Andrade's motion as to grounds one and two, and deny it as to grounds three and four. The Court will also appoint counsel for Moreno-Andrade to pursue a direct appeal in criminal case CR-06-00736-PHX-DGC. In order to give Moreno-Andrade and his counsel time to review the case and the merits of any appeal, the Court will not enter an order vacating and re-entering Moreno-Andrade's judgment in CR-06-00736-PHX-DGC until January 29, 2010. If Moreno-Andrade wishes to appeal, he must file his notice of appeal within 14 days of the new judgment being entered on January 29, 2010. Fed.R.App.P. 4(b).
IT IS ORDERED:
1. The R R (Dkt. #2) is accepted.
2. The motion to vacate, set aside, or correct sentence (Dkt. #1) is granted in part and denied in part. The Court will, on January 29, 2010, enter an order vacating and re-entering Moreno-Andrade's judgment in CR-06-00736-PHX-DGC.
3. The Court appoints attorney Tonya Peterson to represent Moreno-Andrade on appeal from the re-entered judgment in CR-06-00736-PHX-DGC.