Chancey Fuller v. United States , 677 F. App'x 384 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 21 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHANCEY TERREL FULLER, a.k.a. No. 14-56260
Chance, a.k.a. Fat Boy,
D.C. Nos. 2:13-cv-07420-JFW
Petitioner-Appellant, 2:08-cr-00240-JFW
v.
MEMORANDUM*
UNITED STATES OF AMERICA,
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Submitted February 14, 2017**
Before: GOODWIN, FARRIS, and FERNANDEZ, Circuit Judges.
Chancey Terrel Fuller appeals pro se from the district court’s judgment
denying his 28 U.S.C. § 2255 motion. We have jurisdiction under 28 U.S.C.
§ 2253. We review de novo the district court’s denial of a section 2255 motion,
*
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).
see United States v. Manzo, 675 F.3d 1204, 1209 (9th Cir. 2012), and we affirm.
Fuller contends that appellate counsel was constitutionally ineffective for
failing to challenge his waiver of the right to counsel under Faretta v. California,
422 U.S. 806 (1975). As the government concedes, Fuller was misadvised of the
potential penalty that he faced on one of the six charged offenses. However,
because Fuller was otherwise correctly advised of the cumulative maximum term
of imprisonment that he faced, the nature of the charges against him, and the
dangers of self-representation, the record reflects that Fuller waived his right to
counsel “with eyes open.” See id. at 835; see also United States v. Neal, 776 F.3d
645, 657-59 (9th Cir. 2015). Accordingly, Fuller has not shown that counsel’s
failure to raise this challenge on direct appeal was objectively unreasonable, or that
the claim had a reasonable probability of success on appeal. See Strickland v.
Washington, 466 U.S. 668, 687-88 (1984); see also Smith v. Robbins, 528 U.S.
259, 288 (2000) (counsel need not raise every non-frivolous claim on appeal, and
the presumption of effective appellate assistance is overcome “only when ignored
issues are clearly stronger than those presented”) (internal quotations omitted).
We treat Fuller’s additional arguments as a motion to expand the certificate
of appealability and deny the motion. See 9th Cir. R. 22-1(e); Hiivala v. Wood,
2 14-56260
195 F.3d 1098, 1104-05 (9th Cir. 1999).
Fuller’s motion for leave to file his untimely reply brief is granted. The
Clerk is directed to file Fuller’s reply brief (Docket Entry No. 45).
Fuller’s motion for summary reversal is denied.
AFFIRMED.
3 14-56260