Fabian-Baltazar v. United States

          ORDER ON PETITIONER'S 28 U.S.C. § 2255 PETITION AND ORDER FOR REENTRY OF JUDGMENT

         This is 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.

         On 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 (2019).

         On July 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.

         On 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.

         Background

         On 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.

         Petitioner's Argument

         In 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.

         Respondent's Opposition

         The 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.

         Petitioner's Reply

         Petitioner 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.

         Respondent's Sur-Reply

         The 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.

         Declarations & Transcripts

         1. Declaration of Roger Shafer (Doc. No. 63)

         In pertinent part, Mr. Shafer declared:

I am the former attorney for the petitioner ...