Trinh v. USA
Filing
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ORDER (tfS, COURT STAFF) (Filed on 4/15/2014)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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United States District Court
For the Northern District of California
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No. CR 10-00385 SI; No. CV 13-02539 SI
HUY TRINH,
ORDER OF REFERRAL TO
MAGISTRATE JUDGE FOR
APPOINTMENT OF COUNSEL AND
EVIDENTIARY HEARING
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
/
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Petitioner Huy Trinh, an inmate at the Federal Correctional Institution in Safford, Arizona, filed
a pro se motion under 28 U.S.C. section 2255 to vacate, set aside, or correct his sentence,
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Petitioner alleges that his counsel rendered ineffective assistance by failing to file an appeal.
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Petitioner alleges that he asked his lawyer to file an appeal, notwithstanding his waiver of his right to
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appeal in his plea agreement, and that counsel failed to do so. Docket No. 162 at 22. Defense counsel
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denies petitioner’s allegations and states that “at no time prior, during, or after sentencing did petitioner
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instruct counsel to file an appeal.” Docket No. 170, Ex. 4. Under Ninth Circuit law, an evidentiary
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hearing is necessary to determine whether petitioner made such a request. See United States v.
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Sandoval-Lopez, 409 F.3d 1193, 1198 (9th Cir. 2005). In Sandoval-Lopez, the Ninth Circuit held that
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it is ineffective assistance of counsel to refuse to file a notice of appeal when requested by defendant,
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even if doing so is contrary to a plea agreement and would likely have no merit. Id. The district court
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must either (1) hold an evidentiary hearing to determine whether petitioner’s allegation is true, “and if
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it is, vacate and reenter the judgment, allowing the appeal to proceed,” or (2) if the government does not
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object, “the district court can vacate and reenter the judgment without a hearing and allow the appeal
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to proceed, assuming without deciding that the petitioner’s claim is true.” Id. Here, the government has
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not agreed to allow the appeal to proceed, Docket No. 170 at 10, and thus, the Court finds it necessary
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to have an evidentiary hearing.
The Court may refer the section 2255 motion “to a magistrate judge to conduct hearings and to
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file proposed findings of fact and recommendations for disposition.” See Rule 8(b) of the Rules
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Governing Section 2255 Proceedings For The United States District Courts. When an evidentiary
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hearing is held, the court “must appoint an attorney to represent a moving party who qualifies to have
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United States District Court
For the Northern District of California
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counsel appointed under 18 U.S.C. § 3006A.” See Rule 8(c) of the Rules Governing Section 2255
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Proceedings For The United States District Courts. Petitioner qualifies for appointment of counsel. See
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Docket No. 116.
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Accordingly, the Court refers this matter to a magistrate judge for appointment of counsel, and
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to conduct an evidentiary hearing to make “findings of fact and recommendations for disposition”
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regarding petitioner’s claim that defense counsel was ineffective for failing to file a notice of appeal,
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despite being requested to do so. Id. at Rule 8(b).
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IT IS SO ORDERED.
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Dated: April 14 , 2014
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SUSAN ILLSTON
UNITED STATES DISTRICT JUDGE
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA et al,
Case Number: CR10-00385 SI
Plaintiff,
CERTIFICATE OF SERVICE
v.
HUY TRINH et al,
Defendant.
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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on April 15, 2014, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing
said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.
Huy Trinh
14625-111
FCI Safford
P.O. 9000
Inmate Mail/Parcels
Safford, AZ
Dated: April 15, 2014
Richard W. Wieking, Clerk
By: Tracy Kasamoto, Deputy Clerk
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