Fernando Ayala-Ramos v. United States

FILED
NOT FOR PUBLICATION JUL 29 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FERNANDO NELSON AYALA- No. 11-56487
RAMOS, a.k.a. Jose, a.k.a. Nelson
Fernando Ramos-Ayala, D.C. Nos. 2:10-cv-07648-PA
2:09-cr-00242-PA
Petitioner - Appellant,
v. MEMORANDUM*
UNITED STATES OF AMERICA,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted July 22, 2014**
Before: GOODWIN, CANBY, and CALLAHAN, Circuit Judges.
Federal prisoner Fernando Nelson Ayala-Ramos 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. We review de novo
*
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).
the district court’s denial of a section 2255 motion, see United States v. Aguirre-
Ganceda, 592 F.3d 1043, 1045 (9th Cir. 2010), and we vacate and remand.
Ayala-Ramos contends that his counsel rendered ineffective assistance by
failing to comply with instructions to file a notice of appeal. The government
agrees that this claim is controlled by United States v. Sandoval-Lopez, 409 F.3d
1193, 1197-98 (9th Cir. 2005), which holds that when counsel fails to follow a
client’s instructions to file a notice of appeal, there is both deficient performance
and prejudice. Accordingly, we vacate and remand to the district court for an
evidentiary hearing to determine the veracity of Ayala-Ramos’s allegation that
counsel did not follow his instructions to file a notice of appeal. See id. at 1198.
Alternatively, if the government does not object, the district court may vacate and
reenter the judgment in Ayala-Ramos’s criminal proceedings, allowing Ayala-
Ramos to file a timely notice of appeal. See id.VACATED and REMANDED with instructions.
2 11-56487