United States v. Carlos Soto-Lopez

FILED

NOT FOR PUBLICATION APR 10 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 11-55244

Plaintiff - Appellee, D.C. Nos. 3:10-cv-01852-IEG 3:07-cr-03475-IEG-1 v.

CARLOS SOTO-LOPEZ, AKA Carlos MEMORANDUM * Mendoza-Camacho, AKA Carlos Soto, AKA Manuel Urias-Castro,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Cindy K. Jorgenson, District Judge, Presiding

Argued February 7, 2012 Submitted April 6, 2012 Pasadena, California

Before: REINHARDT, WARDLAW, and CALLAHAN, Circuit Judges.

Carlos Soto-Lopez appeals the district court's denial of his 28 U.S.C. y 2255

habeas petition, in which he requested that the district court vacate his sentence.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

1 Soto-Lopez argues that his sentence should be vacated because he received

ineffective assistance of counsel from attorney Christian De Olivas, who…

MEMORANDUM *

Carlos Soto-Lopez appeals the district court’s denial of his 28 U.S.C. § 2255 habe-as petition, in which he requested that the district court vacate his sentence. Soto-Lopez argues that his sentence should be vacated because he received ineffective assistance of counsel from attorney Christian De Olivas, who advised him to reject a favorable “fast-track” plea offer. The district court dismissed Soto-Lopez’s petition, finding that the facts alleged by Soto-Lopez did “not me[e]t his burden to overcome the strong presumption that counsel’s conduct fell ‘within the wide range of professional assistance.’ ” Soto-Lopez v. United States, No. 07CR3475-IEG, 2011 WL 176026 , at *4 (S.D.Cal. Jan.19, 2011) (quoting Strickland v. Washington, 466 U.S. 668, 689 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984)). The district court granted a certificate of appealability.

We have jurisdiction over Soto-Lopez’s timely appeal. 28 U.S.C. § 2253 (c). We review the district court’s denial of Soto-Lopez’s § 2255 petition for a writ of habeas corpus de novo. United States v. Fredman, 390 F.3d 1153, 1156 (9th Cir.2004). Because “a district court may summarily dismiss a § 2255 motion only if the…

dissenting:

I respectfully dissent. Even if the district court were to determine on remand that all of Soto-Lopez’s allegations are true, those allegations are not sufficient to satisfy either the deficient performance or the prejudice prongs of Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). That conclusion would have been correct before the Supreme Court’s recent decision in Lafler v. Cooper, — U.S. -, 132 S.Ct. 1376 , 182 L.Ed.2d 398 (2012), and it remains correct today.

I. Performance

Our decision in Turner v. Calderon, 281 F.3d 851 (9th Cir.2002), which the majority properly relies on in its disposition, holds that, in the plea context, “[c]ounsel cannot be required to accurately predict what the jury or court might find, but he can be required to give the defendant the tools he needs to make an intelligent decision.” Turner, 281 F.3d at 881 ; see also Lafler, 132 S.Ct. at 1391 (“[A]n erroneous strategic prediction about the outcome of a trial is not necessarily deficient performance.”). In Turner , the defendant alleged that his lawyer was ineffective because, among other things, the lawyer told him that the worst sentence he faced was 15…