Nathan Manuelito v. United States

FILED
NOT FOR PUBLICATION
AUG 09 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATHAN BROOKS MANUELITO, No. 15-16239
Petitioner - Appellant, D.C. No. 3:13-cv-08071-PGR
v.
MEMORANDUM*
UNITED STATES OF AMERICA,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Arizona
Paul G. Rosenblatt, Senior District Judge, Presiding
Argued and Submitted July 8, 2016
San Francisco, California
Before: NGUYEN and NOONAN, Circuit Judges and ANELLO,** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Michael M. Anello, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.
Federal prisoner Nathan Brooks Manuelito appeals pro se from the district
court’s denial of his 28 U.S.C. § 2255 motion. We have jurisdiction under 28
U.S.C. §§ 1291 and 2253. We review de novo the district court’s decision to deny
a section 2255 motion, see United States v. Aguirre-Ganceda, 592 F.3d 1043,
1045 (9th Cir. 2010), and we affirm.
Manuelito contends that his 110-month sentence is unlawful because the
district court improperly classified his prior Arizona resisting arrest conviction as
a predicate violent offense for purposes of the Sentencing Guidelines’ career
offender enhancement, U.S.S.G. § 4B1.1. Having not raised the sentencing issue
on direct appeal, Manuelito is required to show cause and prejudice to excuse his
procedural default of the claim. See Bousley v. United States, 523 U.S. 614, 622
(1998); United States v. Avery, 719 F.3d 1080, 1083 (9th Cir. 2013).
Manuelito asserts that his appellate counsel was ineffective for failing to
argue on appeal that his past resisting arrest conviction was not a crime of
violence. See United States v. McMullen, 98 F.3d 1155, 1157 (9th Cir. 1996)
(“Establishing the elements of an ineffective assistance of counsel claim normally
will meet [the] cause and prejudice test.”). However, appellate counsel’s failure to
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raise this issue does not fall below an objective standard of reasonableness.
Appellate attorneys do not have a constitutional obligation to raise every non-
frivolous issue. Jones v. Barnes, 463 U.S. 745, 751-54 (1983); Miller v. Keeney,
882 F.2d 1428, 1434 n.10 (9th Cir. 1989).
Further, Ninth Circuit case law supported appellate counsel’s understanding
at the time of appeal that an Arizona conviction for resisting arrest was a crime of
violence. See Estrada-Rodriguez v. Mukasey, 512 F.3d 517 (9th Cir. 2007)
(holding that an Arizona conviction for resisting arrest was categorically a crime
of violence). It was not until more than five years later that this Court determined
otherwise, relying on the Supreme Court’s decision in Johnson v. United States,
559 U.S. 133, 140 (2010), and the Arizona Court of Appeal’s decision in State v.
Lee, 176 P.3d 712, 715 (Ariz. Ct. App. 2008). See United States v. Flores-
Cordero, 723 F.3d 1085, 1088 (9th Cir. 2013) (holding that “an Arizona
conviction for resting arrest cannot be considered categorically a crime of
violence under the federal Sentencing Guidelines”).
Even though Johnson and Lee had been decided prior to the time of appeal,
neither case explicitly overruled Estrada-Rodriguez. Appellate counsel was not
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required to be prescient regarding novel application of the law in order to provide
Manuelito with effective representation. See United States v. Zamudio, 787 F.3d
961, 966 (9th Cir. 2015) (“Strickland does not require attorneys to make
arguments based on cases that have not yet been decided.”). It was objectively
reasonable for appellate counsel to rely on Estrada-Rodriguez at the time of direct
appeal. See Moorman v. Schriro, 426 F.3d 1044, 1060 (9th Cir. 2005) (stating
counsel’s failure to raise claims “constitutes ‘cause’ sufficient to lift the state
procedural bar only if he was indeed ineffective in failing to raise them”). Thus,
Manuelito fails to show cause for excusing the procedural default of this claim,
and we need not address the issue of prejudice. See Strickland v. Washington, 466
U.S. 688, 697 (1984) (“[T]here is no reason for a court deciding an ineffective
assistance claim to approach the inquiry in the same order or even to address both
components of the inquiry if the defendant makes an insufficient showing on
one.”).
Nor did trial counsel’s performance fall below an objective standard of
reasonableness. Trial counsel reasonably relied on Estrada-Rodriguez when
deciding not to object to the classification of Manuelito’s resisting arrest
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conviction as a categorical crime of violence, and predicate offense for purposes
of the Sentencing Guidelines’ career offender enhancement. The Supreme Court
decided Johnson twenty days before Manuelito was sentenced, however, Johnson
did not explicitly overrule Estrada-Rodriguez. Furthermore, Ninth Circuit law at
the time required application of the modified categorical approach. See Flores-
Cordero, 723 F.3d at 1088-89 (citing United States v. Aguila-Montes de Oca, 655
F.3d 915 (9th Cir. 2011) (en banc), overruled by Descamps v. United States, 133
S.Ct. 2276, 2283 (2013)). It is not a forgone conclusion that the district court
would have declined to classify the conviction as a predicate violent offense under
this approach.
Manuelito is not entitled to relief under § 2255.
AFFIRMED.
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