Nathan Manuelito v. United States

MEMORANDUM

Federal prisoner Nathan Brooks Manuelito appeals pro se from the district court’s denial of his 28 U.S.C. § 2255 motion. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We review de novo the district court’s decision to deny a section 2255 motion, see United States v. Aguirre-Ganceda, 592 F.3d 1043, 1045 (9th Cir. 2010), and we affirm.

Manuelito contends that his 110-month sentence is unlawful because the district court improperly classified his prior Arizona resisting arrest conviction as a predicate violent offense for purposes of the Sentencing Guidelines’ career offender enhancement, U.S.S.G. § 4B1.1. Having not raised the sentencing issue on direct appeal, Manuelito is required to show cause and prejudice to excuse his procedural default of the claim. See Bousley v. United States, 523 U.S. 614, 622 , 118 S.Ct. 1604 , 140 L.Ed.2d 828 (1998); United States v. Avery, 719 F.3d 1080, 1083 (9th Cir. 2013).

Manuelito asserts that his appellate counsel was ineffective for failing to argue on appeal that his past resisting arrest conviction was not a crime of violence. See United States v. McMullen, 98 F.3d 1155, 1157 (9th Cir. 1996) (“Establishing the elements of…