The opinion of the court was delivered by: Hayes, Judge
The matter before the Court is the motion to vacate, correct, or set aside sentence pursuant to 28 U.S.C. § 2255 filed by Defendant Trinidad Mora Garcia. (Doc. # 43).
In an order filed on April 23, 2010, this Court found that there were no facts to support the Defendant's claim that he was without legal representation at any stage in this proceeding. The Court further found that there were no facts to support the claim of ineffective assistance of counsel as stated in the motion filed by the Defendant for relief pursuant to 28 U.S.C. § 2255. The Court stated:
Defendant raises an additional ground for relief in his Reply relating to his claim of ineffective assistance of counsel. Defendant asserts that Attorney Berg failed to file an appeal upon Defendant's request. This assertion, if true, may establish that his representation fell below an objective standard of reasonableness. See Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) ("[A] lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable."). Because Defendant has alleged new facts supporting this ground for relief in his Reply, the Court will require Plaintiff to file a supplemental response addressing Defendant's allegations that Attorney Berg failed to file an appeal upon Defendant's request.
IT IS HEREBY ORDERED that Plaintiff United States of America shall file a supplemental response to Defendant's Motion within 30 days, including a memorandum of law and fact and any and all relevant evidence in the form of declarations and exhibits, specifically addressing the issue of Attorney Berg's alleged failure to file an appeal upon Defendant's request. IT IS FURTHER ORDERED that Defendant has leave to file a reply to Plaintiff's supplemental response within 60 days of any supplemental response by the Plaintiff, including a memorandum of law and fact and any and all relevant evidence in the form of declarations and exhibits, specifically addressing the issue of Attorney Berg's alleged failure to file an appeal upon Defendant's request.
On May 13, 2010, the United States filed a Supplemental Opposition to Defendant's motion to vacate, set aside, or correct his sentence. The United States asserts that the record in this case conclusively established that the Defendant's failure to ask defense counsel to file a notice of appeal demonstrates that he was not denied effective assistance of counsel. The United States further asserts that the Defendant cannot demonstrate prejudice from his counsel's failure to file a notice of appeal.
On June 22, 2010, the Defendant filed a reply to the supplemental opposition. Defendant asserts that defense counsel Berg should have specialized in immigration law and should have obtained counsel from an immigration attorney. Defendant asserts that the failure to file a Notice of Appeal prejudiced him.
In order to prevail on a claim of ineffective assistance of counsel, Petitioner must show that representation of counsel fell below an objective standard of reasonableness, and that any deficiencies in counsel's performance were prejudicial. See Strickland v. Washington, 466 U.S. 668, 690 (1984). Both deficient performance and prejudice are required before it can be said that a conviction or sentence resulted from a breakdown in the adversary process that rendered the result of the proceeding unreliable and thus in violation of the Sixth Amendment. See United States v. Thomas, 417 F.3d 1053, 1056 (9th Cir. 2005).
In order to show that counsel's representations fell below an objective standard of reasonableness, Defendant must identify "material, specific errors and omissions that fall outside the wide range of professionally competent assistance." United States v. Molina, 934 F.2d 1440, 1447 (9th Cir. 1991) (citation omitted). The inquiry is "whether counsel's advice was within the range of competence demanded of attorneys in criminal cases." Turner v. Calderon, 281 F.3d 851, 879 (9th Cir. 2002) (internal quotations omitted). In making this determination, the court applies a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.
On December 8, 2008, at the sentencing hearing, the Court imposed a sentence of 77 months. The Court stated that this sentence "is slightly more than what Mr. Mora-Garcia received the last time he was before a court in this district for committing [the same] offense, but I do think that it is the minimum sentence to satisfy the 3553 factors. " Doc. # 59-1 at page 10. At the conclusion of the ...