Remand from the United States Supreme Court D.C. Nos.
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. [*]
U.S.C. § 2255
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.
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.
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.
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.
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.
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