Bartlow
Bartlow v. United States
Opinion
Lead Opinion
MEMORANDUM **
Russell David Bartlow appeals the denial of his 28 U.S.C. § 2255 motion to set aside his sentence imposed after he pleaded guilty to three counts of armed bank robbery and one count of using a firearm during a crime of violence. We have jurisdiction pursuant to 28 U.S.C. § 2253 (a), and we affirm.
DISCUSSION
The Government contends we lack jurisdiction because Bartlow faded to file a timely notice of appeal. We disagree. Andrade v. Attorney General of California, 270 F.3d 743, 752 (9th Cir.2001), rev’d on other grounds, 538 U.S. 63 , 123 S.Ct. 1166 , 155 L.Ed.2d 144 (2003), permits us to treat a pro se prisoner’s timely motion for an extension of time as “the functional equivalent of a notice of appeal.” The Government also submits that Bartlow is improperly seeking review of issues barred by the plea agreement and beyond the scope of the certificate of appealability. We conclude, however, that we may review issues that are within the context of Bart-low’s claim of ineffective assistance of counsel.
To establish ineffective assistance of counsel, Bartlow must show that his counsel’s performance was deficient, and that the deficient performance prejudiced his…