Summary
Affirming denial of § 2255 motion as untimely, and concluding "Valenzuela-Chairez has failed to explain either why he waited two years after his conviction became final to request his trial transcripts or why he needed these materials in order to file a timely section 2255 motion."
Summary of this case from United States v. FelixOpinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
D.C. Nos. CV-96-01846-WLD, CR-92-00134-WLD
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Appeal from the United States District Court for the Western District of Washington, William L. Dwyer, District Judge, Presiding.
Before PREGERSON, FERNANDEZ, and WARDLAW, 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.
Byron Christopher Williams appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion to vacate his 138-month sentence for armed bank robbery, in violation of 18 U.S.C. § 2113(a) & (d), and use of a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1). We have jurisdiction under 28 U.S.C. § 2253(a). We review de novo the district court's denial of a section 2255 motion, see United States v. Guess, 203 F.3d 1143, 1145 (9th Cir.2000), and we vacate and remand.
We granted Williams a certificate of appealability on the issue of whether he was denied effective assistance of counsel when counsel failed to file a notice of appeal and Williams did not consent to that failure. Subsequently, in Roe v. Flores-Ortega, 120 S.Ct. 1029 (2000), the Supreme Court expressly set forth the factors to consider in determining whether a defendant received ineffective assistance of counsel when no notice of appeal was filed on his behalf. See id. at 1035-38 (concluding that 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's findings here do not address these particular criteria and the record is insufficient to allow us to do so, we vacate the denial of Williams' motion on this ground only and remand for further proceedings consistent with Flores-Ortega. See id. at 1040.
VACATED AND REMANDED.