Lamere
United States v. Lamere
Opinion
Lead Opinion
MEMORANDUM **
Tasha Marie Lamere appeals from the district court’s order denying her motion pursuant to 28 U.S.C. § 2255 . We have jurisdiction pursuant to 28 U.S.C. § 2253 , and we remand for an evidentiary hearing.
Lamere contends that her attorney rendered ineffective assistance of counsel by failing to file a notice of appeal after being requested to do so. We construe this argument as a motion to expand the certificate of appealability, and we grant the motion. See 9th Cir. R. 22-1 (e); Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir.1999) (per curiam).
The Government concedes that the district court erred when it declined to hold a hearing on trial counsel’s alleged refusal to file a notice of appeal. When an attorney fails to follow a client’s instructions to file a notice of appeal, there is both deficient performance and prejudice. United States v. Sandoval-Lopez, 409 F.3d 1193, 1197-98 (9th Cir.2005). This is true even if the defendant waived the right to appeal, does not have a non-frivolous ground for a direct appeal, and the appellant may spend more time in prison than she would if she had not appealed. Id. at 1197 . We therefore remand to the district court for…