United States v. Francisco Astorga

Court Case Details
Court Case Opinion

FILED

NOV 04 2011

NOT FOR PUBLICATION

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS

U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

No. 10-15267

Plaintiff - Appellee,

D.C. Nos. 2:07-cv-01141-WBS

2:99-cr-00270-WBS

v.

*

MEMORANDUM

FRANCISCO ACOSTA ASTORGA,

Defendant - Appellant.

Appeal from the United States District Court

for the Eastern District of California

William B. Shubb, District Judge, Presiding

**

Submitted October 25, 2011

San Francisco, California

***

Before: GRABER and IKUTA, Circuit Judges, and QUIST,

Senior District

Judge.

Appellant Francisco Acosta Astorga appeals the district court’s denial of his

Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255.

*

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

**

The panel unanimously concludes this case is suitable for decision

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

***

The Honorable Gordon J. Quist, Senior District Judge for the U.S.

District Court for Western Michigan, sitting by designation.

The district court denied his motion after holding an evidentiary hearing. We

affirm because Acosta’s petition was not timely.

Appellant did not file it within one year of the date of his conviction. 28

U.S.C. § 2255(f)(1). Nor did Appellant learn of any new facts that he could not

have discovered through the exercise of due diligence; he merely learned of the

legal significance of the alleged facts that existed at the time of his conviction. See

id. § 2255(f)(4); Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2001).

Furthermore, Appellant is not entitled to equitable tolling because he did not

diligently pursue his claim and also because, given his ability to pay for translation

assistance, he cannot show that “extraordinary circumstances” prevented him from

filing his claim. See United States v. Aguirre-Ganceda, 592 F.3d 1043, 1045-46

(9th Cir.), cert. denied, 130 S. Ct. 3444 (2010); Mendoza v. Carey, 449 F.3d 1065,

1070 & n.5 (9th Cir. 2006).

Even if we were to reach Acosta’s ineffective assistance of counsel claim,

that claim would fail. Appellant cannot show that “(1) counsel’s representation fell

below the range of competence demanded of attorneys in criminal cases, and (2)

there is a reasonable probability that, but for counsel’s errors, he would not have

pleaded guilty and would have insisted on going to trial.” Washington v. Lampert,

422 F.3d 864, 873 (9th Cir. 2005) (internal quotations omitted); see also Padilla v.

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Kentucky, 130 S. Ct. 1473, 1482 (2010). For one, Appellant’s trial counsel

investigated and prepared his case as would a reasonable and competent attorney.

Trial counsel also gave Appellant sufficient and correct advice regarding the

immigration consequences of his plea - to the best of counsel’s recollection she

testified that she advised Appellant that he would be deported. Additionally,

Appellant cannot show that he was prejudiced because he cannot show that it

would have been rational for him to reject the plea; he faced a sentence of at least

120 months in prison by going to trial with an overwhelming amount of evidence

against him, but pled guilty so as to receive a sentence of only 70 months.

AFFIRMED.

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