Anton Acevedo v. James Yates

MEMORANDUM

California state prisoner Anton Acevedo appeals from the district court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction under 28 U.S.C. § 2253 . We review de novo a district court’s denial of a habeas petition, see Collins v. Runnels, 603 F.3d 1127, 1130 (9th Cir.2010), and we reverse and remand.

Acevedo contends that his trial counsel provided ineffective assistance by failing to file a notice of appeal after Acevedo’s 2007 resentencing. The district court rejected this claim, reasoning that Acevedo could not establish prejudice under Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), because he did not show that an appeal would have been successful. But a defendant does not need to show that the appeal would have been meritorious to demonstrate prejudice, only that there is a reasonable probability that he would have appealed but for counsel’s failure to consult with him about an appeal. See Roe v. Flores-Ortega, 528 U.S. 470, 484 , 120 S.Ct. 1029 , 145 L.Ed.2d 985 (2000); United States v. Sandoval-Lopez, 409 F.3d 1193, 1196 (9th Cir.2005). Accordingly, we remand for the district court to consider whether…