United States v. Francisco Andres-Francisco , 535 F. App'x 599 ( 2013 )

FILED
NOT FOR PUBLICATION AUG 01 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
FRANCISCO ANDRES-FRANCISCO, No. 10-55620
Petitioner - Appellant, D.C. Nos. 2:10-cv-00070-GHK
2:08-cr-00295-GHK
v.
UNITED STATES OF AMERICA, MEMORANDUM *
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
George H. King, Chief Judge, Presiding
Submitted July 24, 2013 **
Before: ALARCÓN, CLIFTON, and CALLAHAN, Circuit Judges.
Federal prisoner Francisco Andres-Francisco appeals from the district
court’s order denying his 28 U.S.C. § 2255 motion to vacate, set aside, or correct
his sentence. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Andres-Francisco contends counsel’s failure to file a notice of appeal
constituted constitutionally deficient performance. We review a district court’s
denial of a section 2255 motion de novo. See United States v. Manzo, 675 F.3d
1204, 1209 (9th Cir. 2012). The district court properly denied the motion because
Andres-Francisco has not shown that there is a reasonable probability that he
would have appealed had his trial attorney consulted with him explicitly about the
merits of appealing his criminal history calculation. See Roe v. Flores-Ortega, 528
U.S. 470, 484-86 (2000).
AFFIRMED.
2 10-55620