United States v. Josefina Mangoba Banaga

MEMORANDUM

Petitioner Josefina Mangoba Banaga appeals from the district court’s denial of her motion for relief under 28 U.S.C. § 2255 , challenging her lawyer’s performance as constitutionally deficient during her trial on charges of health care fraud. The government argues that Petitioner filed her § 2255 motion too late and that, as a consequence, we lack jurisdiction to consider it. In the alternative, the government argues that the district court correctly denied the motion on its merits. We review de novo the denial of a § 2255 motion. United States v. Withers, 638 F.3d 1055, 1061 (9th Cir.2011).

I. Jurisdiction

Petitioner filed her § 2255 motion on February 4, 2009. The district court denied the motion on its merits on March 23, 2009. Following a remand from Petitioner’s direct appeal on an issue unrelated to the claim raised in Petitioner’s § 2255 motion, the district court resentenced Petitioner on August 17, 2009. Petitioner filed her notice of appeal on August 19, 2009, two days after the court imposed her new sentence but more than 60 days after the district court denied her § 2255 motion on the merits. The government argues that we lack jurisdiction to review the…