Hernandez-Torres v. USA

Filing 2

ORDER Requesting Clarifying Evidence on Motion Under Section 2255. Signed by Judge Ronald M. Whyte on 6/22/11. (jg, COURT STAFF) (Filed on 6/22/2011)

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*E-FILED on: 6/22/11*

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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 OF AMERICA,
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NO. CR-07-00363-RMW
Plaintiff,

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(Related to C-09-04234-RMW)
v.

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JUAN HERNANDEZ-TORRES,

ORDER REQUESTING CLARIFYING
EVIDENCE ON MOTION UNDER § 2255

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Defendant.
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The government filed its response to the one claim in movant's § 2255 motion that was not

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summarily dismissed, specifically defendant's claim that his appointed counsel promised to file a

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notice of appeal but failed to do so. The government's response includes a declaration from counsel

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that defendant never asked him to file a notice of appeal, nor did he inform the defendant that he had

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filed one. Although defendant's declaration as to what he, defendant, told his counsel about his

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desire to appeal and what his counsel told him is somewhat unclear, it does appear that defendant

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claims there was at least some discussion with his counsel concerning the filing of an appeal.

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Although at this point, it does not appear that an appeal would have been meritorious, counsel's

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failure to file an appeal if he was requested to do so nevertheless constitutes ineffective assistance.

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United States v. Sandoval-Lopez, 409 F.3d 1193, 1197 (9th Cir. 2005). "The prejudice in failure to

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file a notice of appeal cases is that the defendant lost his chance to file the appeal, not that he lost a

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favorable result that he would have obtained by appeal." Id.
NO. CR-07-00363-RMW
(Related to C-09-04234-RMW)

ORDER REQUESTING CLARIFYING EVIDENCE ON MOTION UNDER § 2255

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The government asserts that movant's motion should be denied and no evidentiary hearing

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held. The government suggests that defense counsel's denial that he was ever requested to file an

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appeal is dispositive. However, the court cannot accept counsel's declaration and ignore what

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movant asserts was said. Nevertheless, before defendant will be deemed entitled to an evidentiary

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hearing, he must clarify what discussion he had with his counsel regarding an appeal. He needs to

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set forth, among other things, the approximate date on which he discussed filing of an appeal, the

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substance of what was said by him to his counsel and what his counsel told him. If the defendant's

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evidence raises a question of fact regarding whether counsel was asked to file an appeal or promised

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to do so and then failed to do so, the court will hold an evidentiary hearing to resolve the disputed

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question and rule on the motion. As an alternative, the government could choose to drop its

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opposition to defendant's motion and let defendant's appeal go forward if it believes it would be less

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work to get the appeal dismissed than to participate in an evidentiary hearing. Id.

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Defendant is to submit his clarifying evidence by July 29, 2011. If defendant fails to do so,

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his § 2255 motion will be denied. If defendant files clarifying evidence, the government may

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respond by August 12, 2011.

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DATED: June 22, 2011.
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____________________________
RONALD M. WHYTE
United States District Judge

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NO. CR-07-00363-RMW
(Related to C-09-04234-RMW)

ORDER REQUESTING CLARIFYING EVIDENCE ON MOTION UNDER § 2255

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Copy of Order Mailed on 6/22/11 to:

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Juan Hernandez-Torres
#10682-111
Federal Correctional Institution
P.O. Box 52020
Bennettsville, SC 29512

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Copy of Order E-Filed to Government on 6/22/11
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NO. CR-07-00363-RMW
(Related to C-09-04234-RMW)

ORDER REQUESTING CLARIFYING EVIDENCE ON MOTION UNDER § 2255