Fernando Ayala-Ramos v. United States

Court Case Details
Court Case Opinion

FILED

JUL 29 2014

NOT FOR PUBLICATION

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

FERNANDO NELSON AYALA-
RAMOS, a.k.a. Jose, a.k.a. Nelson
Fernando Ramos-Ayala,

No. 11-56487

D.C. Nos. 2:10-cv-07648-PA

2:09-cr-00242-PA

Petitioner - Appellant,

*

v.

MEMORANDUM

UNITED STATES OF AMERICA,

Respondent - Appellee.

Appeal from the United States District Court

for the Central District of California

Percy Anderson, District Judge, Presiding

**

Submitted July 22, 2014

Before:

GOODWIN, CANBY, and CALLAHAN, Circuit Judges.

Federal prisoner Fernando Nelson Ayala-Ramos appeals from the district

court’s order denying his 28 U.S.C. § 2255 motion to vacate, set aside, or correct

his sentence. We have jurisdiction under 28 U.S.C. § 2253. We review de novo

*

This disposition is not appropriate for publication and is not precedent

except as provided by 9th Cir. R. 36-3.

**

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

the district court’s denial of a section 2255 motion, see United States v. Aguirre-

Ganceda, 592 F.3d 1043, 1045 (9th Cir. 2010), and we vacate and remand.

Ayala-Ramos contends that his counsel rendered ineffective assistance by

failing to comply with instructions to file a notice of appeal. The government

agrees that this claim is controlled by United States v. Sandoval-Lopez, 409 F.3d

1193, 1197-98 (9th Cir. 2005), which holds that when counsel fails to follow a

client’s instructions to file a notice of appeal, there is both deficient performance

and prejudice. Accordingly, we vacate and remand to the district court for an

evidentiary hearing to determine the veracity of Ayala-Ramos’s allegation that

counsel did not follow his instructions to file a notice of appeal. See id. at 1198.

Alternatively, if the government does not object, the district court may vacate and

reenter the judgment in Ayala-Ramos’s criminal proceedings, allowing Ayala-

Ramos to file a timely notice of appeal. See id.

VACATED and REMANDED with instructions.

2

11-56487

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