Wednesday, July 31, 2019

US v. Fabian-Baltazar, No. 15-16115 (7-30-19)(Per curiam w/Rawlinson, Bea, & Hurwitz). If a client tells the lawyer to file a notice of appeal, it is IAC if the lawyer fails to do so, even if there is an appellate waiver in the plea. The Supreme Court held this in Garza v. Idaho, 139 S. Ct. 738 (2019).  Here, the petitioner filed a 2255 alleging IAC for his lawyer’s failure to file the notice of appeal.  The 9th had affirmed the denial of the IAC, but upon remand from the Supreme Court in light of Garza, it now vacates the denial and remands to determine if the petitioner had in fact instructed his lawyer to file.  This opinion raises the issue of whether it would be IAC if the lawyer fails to consult with the client to ascertain his intent, and seems to indicate, again following Garza, that it would be. On remand here, the court needs to determine whether an instruction was given; and if not, whether the lawyer failed to consult.

This per curiam opinion thus seems to set out how counsel should proceed, even in light of an appellate and 2255 waiver.

Congrats to AFPD Peggy Sasso, FPD Cal E. (Fresno).

The decision is here:



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