United States v. Abel Fabian-Baltazar
931 F.3d 1216
9th Cir.2019Background
- Fabian-Baltazar pleaded guilty to possession with intent to distribute methamphetamine after signing a plea agreement that waived both appeal and collateral attack rights.
- He filed a 28 U.S.C. § 2255 motion alleging, among other things, that trial counsel rendered ineffective assistance by failing to file a notice of appeal after being asked to do so.
- The district court denied the § 2255 motion; the Ninth Circuit affirmed, enforcing the collateral-review waiver.
- The Supreme Court granted certiorari, vacated, and remanded in light of Garza v. Idaho, which holds counsel is ineffective for failing to file an appeal when the defendant requests one even if an appeal waiver exists.
- On remand the government declined to enforce Fabian-Baltazar’s collateral-attack waiver, limiting the issue to the appeal-waiver context.
- The Ninth Circuit vacated the district court’s order and remanded for the district court to determine (1) whether Fabian-Baltazar expressly instructed counsel to file a notice of appeal, and if not, (2) whether counsel failed to consult and whether that failure was deficient under Flores-Ortega.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel rendered ineffective assistance by failing to file a notice of appeal | Fabian-Baltazar says he expressly told counsel to file an appeal | Government says court must first resolve whether he actually requested an appeal before reaching merits | Remanded: district court must determine if defendant requested appeal; if not, determine whether counsel failed to consult and if that failure was deficient |
Key Cases Cited
- Garza v. Idaho, 139 S. Ct. 738 (2019) (attorney ineffective for failing to file notice of appeal when defendant requests one, even with appeal waiver)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance: deficient performance and prejudice)
- Roe v. Flores-Ortega, 528 U.S. 470 (2000) (duty to consult about appeal; framework for evaluating counsel’s failure to consult)
- United States v. Sandoval-Lopez, 409 F.3d 1193 (9th Cir. 2005) (procedures when defendant alleges counsel refused to file an appeal; evidentiary hearing or vacatur if government does not object)