Simtob

MEMORANDUM ***

Solomon Simtob appeals his conviction and sentence following a jury trial for Possession with Intent to Distribute in Excess of 50 Grams of Methamphetamine and Distribution of 5.94 Grams of Methamphetamine. This appeal follows a remand by this Court, which, among other things, vacated Simtob’s conviction and remanded for the district court to determine whether Simtob’s alleged “eye-balling” of a juror resulted in a biased jury. See United States v. Simtob, 485 F.3d 1058, 1065-66 (9th Cir.2007).

Following remand, the district court summoned the discharged panel and questioned the jurors about whether their capacity to act fairly and impartially was impaired by Simtob’s “eye-balling.” All jurors denied that their verdict was influenced by the incident. Finding no error, the district court reinstated the conviction and, in a separate proceeding, reinstated the prior sentence of 240 months.

Simtob’s counsel failed to timely file a Notice of Appeal and, as a result, Simtob filed a petition for habeas corpus pursuant to 28 U.S.C. § 2255 , alleging ineffective assistance of counsel. The district court granted Simtob’s petition, vacated the sentence entered on September…