United States District Court, D. Arizona
Honorable Cindy K. Jorgenson Judge.
before the Court is the Amended Motion Under 28 U.S.C. §
2255 to Vacate, Set Aside or Correct Sentence by a Person in
Federal Custody (CV 17-012, Doc. 1; CR 15-512, Doc.
filed by Movant Arnoldo Sergio Martinez-Sanchez
(“Martinez-Sanchez”). A response (Doc. 8) has
February 21, 2015, Martinez-Sanchez was arrested on
immigration charges in the District of Arizona and thereafter
ordered detained on a felony complaint filed February 23,
2015. On March 18, 2015 an indictment was filed charging
Martinez-Sanchez with Reentry of Removed Alien.
February 5, 2016, United States Magistrate Judge Eric J.
Markovich held the Change of Plea Hearing in the related
criminal case. Martinez-Sanchez pleaded guilty to the
indictment in CR 15-512 pursuant to a plea agreement before
the magistrate judge. The plea agreement waived
Martinez-Sanchez's right to appeal or collateral attack
in challenging his conviction or sentence, but this waiver
did not bar a claim based on ineffectiveness assistance of
counsel. (CR15-512, Doc. 34, p. 4). On February 22, 2016,
this Court adopted the magistrate judge's findings and
accepting Martinez-Sanchez's plea of guilty.
April 15, 2016, Martinez-Sanchez appeared before the Court
for sentencing. He was sentenced to forty-six (46) months
imprisonment to be followed by three (3) years supervised
17, 2016, Martinez-Sanchez appealed, arguing that he
requested defense counsel to file an appeal to review the
validity of the Removal Order. On September 23, 2016, the
Ninth Circuit dismissed the appeal as untimely, and noted
such a claim should be raised in habeas corpus proceedings.
January 9, 2017, Martinez-Sanchez filed a Motion under 28
U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence
by a Person in Federal Custody in CR 15-512; the civil action
was designated as CV 17-012. Martinez-Sanchez alleged one
ground for relief: he received ineffective assistance of
defense counsel when counsel failed to file a notice of
appeal as directed by Martinez-Sanchez. The government has
filed a response (Doc. 8).
Assistance of Counsel
states that counsel was ineffective for failing to file a
Notice of Appeal on his behalf. Generally, to succeed on a
claim of ineffective assistance of counsel, a defendant must
satisfy a two prong test, demonstrating: (1) deficient
performance, such that counsel's actions were outside the
wide range of professionally competent assistance, and (2)
that the defendant was prejudiced by reason of counsel's
actions. Strickland v. Washington, 466 U.S. 668,
686-90, 104 S.Ct. 2052, 2064-66, 80 L.Ed.2d 674 (1984).
"[i]f a defendant, even one who has expressly waived his
right to appeal, files a habeas petition after sentencing and
judgment claiming that he ordered his attorney to appeal and
his attorney refused to do so, " the Court can either
hold an evidentiary hearing or, if the government does not
object, "vacate and reenter the judgment, allowing the
appeal to proceed[.]" United States v.
Sandoval-Lopez, 409 F.3d 1193, 1198 (9th Cir. 2004);
see also Roe v. Flores-Ortega, 528 U.S. 470, 475-76
(2000). The government asserts there is nothing in the record
to support Martinez-Sanchez's claim that he requested
counsel to file a Notice of Appeal. The government contends
that Martinez-Sanchez never requested, either verbally, or in
writing, nor through a third party that an appeal be filed in
his behalf. Furthermore, relying on the affidavit of defense
counsel, had Martinez-Sanchez requested a Notice of Appeal,
one would have been filed immediately in order to preserve
the possibility of appeal. The government states that the
2255 motion should be denied without an evidentiary hearing
as Martinez-Sanchez has failed to meet the prongs of the
2255 requires the district court hold an evidentiary hearing
“[u]nless the motions and files and record of the case
conclusively show that the prisoner is entitled to no
relief.” 28 U.S.C. § 2255. An evidentiary hearing
is usually required if the motion states a claim based on
matters outside the record or events outside the courtroom.
United States v. Burrows, 872 F.2d 915 (9th
Cir.1989), citations omitted. When raising a claim as
presented in this case, the Strickland analysis has
been reduced to a single two-part question: “did the
petitioner instruct his attorney to file a notice of appeal
and did the attorney fail to do so? A “yes”
answer to both parts of this question would, in principle,
determine that Petitioner is entitled to relief. That
question must be resolved through an evidentiary
hearing.” Sperling v. United States, CV08-5198
AHM, 2009 WL 4349810 *3 (C.D.Cal. 2009). Also, an evidentiary
hearing is necessary even if a plea agreement stipulated to a
waiver of appeal or collateral attack when an ineffective
assistance of counsel claim is specifically exempted.
Matta v. United States, No. 11CR1100-LAB, 2014 WL
4627212, at *5 (S.D. Cal. Sept. 15, 2014). Here, like
Matta, Martinez-Sanchez waived his right to appeal
or collaterally attack his conviction or sentence; however,
the plea agreement did not bar an otherwise preserved claim
of ineffective assistance of counsel. (CR15-512, Doc. 34, p.
section 2255 motion may also be denied by the district court
without an evidentiary hearing only if the movant's
allegations, viewed against the record, either do not state a
claim for relief or are so palpably incredible or patently
frivolous as to warrant summary dismissal. Id.;
see also Watts v. United States, 841 F.2d 275, 277
(9th Cir.1988) (“[a]n evidentiary hearing is not
required where the issue of credibility may be
“conclusively decided on the basis of documentary
testimony and evidence in the record”).
on the evidence at this time, the Court finds it cannot be
“conclusively decided” whether or not
Martinez-Sanchez requested counsel to file a Notice of
Appeal. The government has not pointed to any additional
authority that, in these circumstances, the Court may resolve
the conflict between Martinez-Sanchez's claim and the
affidavit of counsel without an evidentiary hearing. See
Sperling; Perez-Gonzalez v. United States, CV
08-286-S-BLW, 2009 WL 1240133 (D.Id. 2009)
(existence of contradicting affidavit ...