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United States v. Fabian-Baltazar

United States Court of Appeals, Ninth Circuit

July 30, 2019

United States of America, Plaintiff-Appellee,
v.
Abel Heriberto Fabian-Baltazar, AKA Abel Heriberto Fabia Baltazar, Defendant-Appellant.

          On Remand from the United States Supreme Court D.C. Nos. 1:14-cv-00984-AWI, 1:13-cr-00032-AWI-BAM-1

          Peggy Sasso, Assistant Federal Defender; Heather E. Williams, Federal Defender; Office of the Federal Public Defender, Fresno, California; for Defendant-Appellant.

          Melanie L. Alsworth, Assistant United States Attorney; Camil A. Skipper, Appellate Chief; McGregor Scott, United States Attorney; United States Attorney's Office, Fresno, California; for Plaintiff-Appellee.

          Before: Johnnie B. Rawlinson, Carlos T. Bea, and Andrew D. Hurwitz, Circuit Judges. [*]

         SUMMARY [**]

         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.

          OPINION

          PER CURIAM:

         Fabian-Baltazar pleaded guilty to possession of 50 grams or more of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A), after entering into a plea agreement waiving the right to appeal or collaterally attack his sentence. Fabian-Baltazar nonetheless filed a 28 U.S.C. § 2255 motion attacking the sentence, claiming among other things that trial counsel rendered ineffective assistance by failing to file a notice of appeal.

         The district court denied the § 2255 motion, and this Court affirmed, holding that the district court did not err by enforcing Fabian-Baltazar's "express waiver of his right to bring a 28 U.S.C. § 2255 petition." United States v. Fabian-Baltazar, 707 Fed.Appx. 477, 478 (9th Cir. 2017). We noted that a plea agreement that waives the right to collateral review is unenforceable with respect to an ineffective assistance claim challenging the voluntariness of the waiver, but stressed that Fabian-Baltazar's § 2255 motion did not challenge the voluntariness of his collateral review waiver. Id.

         Fabian-Baltazar petitioned for certiorari. The Supreme Court granted the petition, vacated the judgment, and remanded for further consideration in light of Garza v. Idaho, 139 S.Ct. 738 (2019). See Fabian-Baltazar v. United States, 139 S.Ct. 1289, 1289 (2019). We then ordered the parties to file supplemental briefs addressing Garza. Having ...


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