United States District Court, E.D. California
ABEL HERIBERTO FABIAN-BALTAZAR aka Abel Heriberto Fabia Baltazar, Petitioner,
UNITED STATES OF AMERICA, Respondent.
ORDER ON PETITIONER'S 28 U.S.C. § 2255
PETITION AND ORDER FOR REENTRY OF JUDGMENT
a petition for relief from sentence under 28 U.S.C. §
2255. Petitioner contends inter alia that his
counsel failed to file a notice of appeal, despite his
instruction to his counsel to do so, and failed to consult
him about an appeal.
March 31, 2015, the Court denied this petition and relied on
a waiver that was found in Petitioner's plea bargain.
See Doc. No. 33. On December 14, 2017, the Ninth
Circuit affirmed the denial. See Doc. No. 56.
However, the Supreme Court remanded the matter to the Ninth
Circuit in light of Garza v. Idaho, 139 S.Ct. 738
30, 2019, the Ninth Circuit remanded the petition to this
Court. United States v. Fabian-Baltazar, 931 F.3d
1216, 1218 (9th Cir. 2019). In relevant part, the Ninth
Circuit held: “The district court should therefore
determine on remand whether [Petitioner expressly instructed
his counsel to file a notice of appeal], and if not, whether
counsel failed to consult, and if so, whether that failure
constituted deficient performance. See United States v.
Sandoval-Lopez, 409 F.3d 1193, 1198 (9th Cir. 2005) . .
. .” Id.
September 23, 2019, mandate issued on the Ninth Circuit's
opinion. This order follows the Ninth Circuit's
instructions and concludes that relief should be granted.
August 5, 2013, Petitioner and the Government entered a plea
agreement in which the Petitioner pled guilty to a violation
of 21 U.S.C. § 841(a)(1), possession with intent to
distribute 50 grams or more of methamphetamine. See
Doc. No. 21. On December 16, 2013, Petitioner was sentenced
to 120 months in prison. See Doc. No. 27. On June
23, 2014, Petitioner filed this motion pursuant to 28 U.S.C.
§ 2255. See Doc. No. 29.
pertinent part, Petitioner argued that his attorney failed to
consult with him regarding an appeal following his guilty
plea and sentencing, which resulted in a violation of his
Sixth Amendment rights to effective assistance of counsel.
Prior to sentencing while Petitioner was in the holding cell
in federal court, Petitioner's counsel, Roger Shafer,
told him that the Pre-Sentence Report had recommended a
140-month term, which was higher than the 7 to 8 year
sentence that counsel had indicated was typical for
Petitioner's crime. Petitioner told his attorney that he
wanted to appeal the excessive sentence. Petitioner was later
sentenced to 120 months that day. Two days after sentencing,
petitioner called Mr. Shafer's office and spoke to his
counsel's secretary. Petitioner told the secretary that
he wanted to speak to Mr. Shafer regarding an appeal. After
apparently consulting with Mr. Shafer, the secretary informed
Petitioner that Mr. Shafer had never appealed any case and
that Petitioner needed to go to the law library at the jail
to request an appeal form, and then he should file the appeal
in court. Petitioner argues Mr. Shafer's failure act on
his express direction to file an appeal, including the
failure to engage in any consultations or make reasonable
efforts to do discover Plaintiff's thoughts concerning an
appeal, resulted in Petitioner receiving ineffective
assistance of counsel.
United States points to a declaration by Mr. Shafer and
argues that Petitioner never instructed Mr. Shafer to file a
notice of appeal after sentencing. Although Mr. Shafer
acknowledges that Petitioner contacted his office shortly
after sentencing, Petitioner called to request a file, not to
request an appeal. Therefore, because there was no request
for Shafer to file a notice of appeal, Mr. Shafer was not
deficient for failing to do so. Further, the United States
argues that Mr. Shafer was not deficient for failing to
consult with Petitioner about an appeal. At the plea
colloquy, Petitioner was told that the offense to which he
was pleading guilty carried a mandatory minimum sentence of
10 years unless he qualified for a safety valve, that the
Court would impose a sentence after reviewing the
pre-sentence report, and that the Court could impose a
sentence that was different from any estimate his attorney
may have given him. At sentencing, Mr. Shafer advocated for
70 month sentence, but that request was denied because the
Court could not find that Petitioner played only a minor role
in the offense. However, based on mitigating factors, the
Court varied downward from the recommended 140 month sentence
to a 120 month sentence. Mr. Shafer was successful in
obtaining a lower sentence than what was recommended. Due to
the appellate waiver, the only claims possible deal with
issues that are not applicable to Petitioner's case. As a
result, there was no reason for Mr. Shafer to consult with
Petitioner about an appeal following the sentence.
argues that the record now clearly shows that Mr. Shafer did
not consult with him about an appeal and that the failure was
deficient. The record shows that Petitioner wanted to
exercise his right to take an appeal. At the sentencing,
Petitioner said that he wanted to see if there was help in
any other way because he felt his sentence was unfair. The
Court responded that Petitioner had waived his right to
appeal. Despite Petitioner's statement, Mr. Shafer did
not consult with Petitioner or file a notice of appeal.
Because prejudice is presumed when an attorney fails to file
an appeal or consult about an appeal, Petitioner has been
prejudiced and the remedy is to re-enter judgment so as to
permit a direct appeal.
United States responds that Petitioner's statement to the
Court about other help was ambiguous. Moreover, after trial
counsel argued for a lower sentence then that recommended by
the presentence report, Petitioner simply apologized to the
Court and the United States. Petitioner's apology,
coupled with an ambiguous statement at the end of the
sentencing proceeding, a knowing and voluntary guilty plea,
and an advisement that the court could reject the sentencing
recommendation, is inconsistent with someone who intends to
appeal or expects his lawyer to consult with him about an
appeal. Therefore, Mr. Shafer was not constitutionally
deficient for failing to consult with Petitioner.
Declaration of Roger Shafer (Doc. No. 63)
pertinent part, Mr. Shafer declared:
I am the former attorney for the petitioner ...