Fernando Ayala-Ramos v. United States

MEMORANDUM

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 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…