Rodriguez-Rodriguez v. USA

Filing 5

ORDER Granting In Part Petition to Vacate under 28 USC 2255. Signed by Judge Thomas J. Whelan on 6/19/2019.(All non-registered users served via U.S. Mail Service)(jao)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GABRIEL RODRIGUEZ-RODRIGUEZ,

Case No.: 16-CR-0374 W
17-CV-0513 W

Petitioner,

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v.

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UNITED STATES OF AMERICA,

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ORDER:
(1) GRANTING IN-PART THE
PETITION AND JUDGMENT IN
CIVIL CASE;
(2) RELIEVING COUNSEL;
(3) REFERRING TO MAGISTRATE
JUDGE FOR APPOINTMENT OF
COUNSEL; AND
(4) VACATING AND RE-ENTRY OF
JUDGMENT IN CRIMINAL CASE

Respondent.

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On March 14, 2017, Petitioner Gabriel Rodriguez-Rodriguez filed a motion to

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vacate under 28 U.S.C. § 2255 (the “Petition” [Doc. 29]). Petitioner argued, among other

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things that his sentence should be vacated, set aside or corrected because his attorney

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provided ineffective assistance by failing to file an appeal. (Pet. 5, 14.)

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On February 23, 2018, this Court rejected Petitioner’s argument and denied the

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Petition. (See Order [Doc. 42].) The Order found that Petitioner’s argument lacked

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merit because: (1) Petitioner waived his right to appeal in the Plea Agreement; and (2)

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Petitioner’s attorney filed a declaration stating there “is no record of Petitioner requesting
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for him to file an appeal, and regardless, his practice is to file a notice of appeal when

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requested by a client,” even if the client’s plea agreement waived the right to appeal. (Id.

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5:15–25.)

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Four days after this Court denied the Petition, the Supreme Court decided Garza v.

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Idaho, 586 U.S. __, 2019 WL 938523 (2019). There, the Court held that in the context of

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an ineffective assistance of counsel claim, prejudice is presumed where counsel fails to

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file a notice of appeal despite the client’s express instructions, regardless of whether the

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client signed an appeal waiver. Id. * 8.

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In light of Garza, on March 15, 2019, the Ninth Circuit ordered the Government to

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show cause why this Court’s Order should not be vacated, and the case remanded for

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“consideration of whether an evidentiary hearing is necessary to resolve the conflicting

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statements of fact set forth in appellant’s verified section 2255 motion and counsel’s

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declaration….” (9th Cir. Order [Doc. 49]. p. 1.) The Government did not object to the

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remand, and the Ninth Circuit vacated the Order and remanded the case for further

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proceedings consistent with Garza. (Id. p. 2.)

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On May 29, 2019, the Government filed a brief suggesting that upon issuance of

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the mandate, this Court follow U.S. v. Sandoval, 409 F.3d 1193 (9th Cir. 2005). (See

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Gov’t Suggestion [Doc. 50].) Sandoval explained that in lieu of an evidentiary hearing to

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determine whether the petitioner “really did tell his lawyer to appeal and his lawyer

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refused,” the Government could choose not to oppose petitioner’s claim and allow him to

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appeal. Id. at 1198. On June 17, 2019, the Ninth Circuit issued the mandate.

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Based on the foregoing, the Court ORDERS as follows:

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1.

Petitioner’s Petition [Doc. 29] is GRANTED with respect to his claim for

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ineffective assistance of counsel based on counsel’s alleged failure to follow Petitioner’s

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instruction to file a notice of appeal, and JUDGMENT shall be entered accordingly in

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favor of Petitioner in civil case 17-cv-513.

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2.

Attorney Robert H. Rexrode, III is RELIEVED as Petitioner’s counsel.

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3.

The Court REFERS the matter to Magistrate Judge Barbara L. Major for the

appointment of counsel for Petitioner.
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The Clerk of the Court SHALL VACATE and REENTER the Judgement

entered on July 5, 2016 [Doc. 22] in Petitioner’s criminal case 16-cr-374.
IT IS SO ORDERED.
Dated: June 19, 2019

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