Opinion
No. CR-06-2140-FVS-1, CV-09-3011-FVS, CV-09-3016-FVS.
February 12, 2009
ORDER
BEFORE THE COURT are Defendant Perfecto Acevedo Sanchez's ("Defendant's") January 27, 2009, Section 2255 petition (Ct. Rec. 252), Defendant's supplemental Section 2255 petition filed on February 9, 2009 (Ct. Rec. 256), and the Government's February 10, 2009, motion requesting that the Court vacate and reenter the judgment in this case to allow Defendant's appeal period to restart. (Ct. Rec. 257). Defendant is proceeding pro se. The Government is represented by Assistant United States Attorney Jane Kirk.
BACKGROUND
On October 4, 2007, Defendant pleaded guilty, pursuant to a written plea agreement, to counts 1 and 3 of the indictment. (Ct. Rec. 179). The plea agreement contained a waiver of appeal if the Court imposed a sentence of not greater than 210 months. (Ct. Rec. 179 ¶ 18). The plea agreement further contained a waiver of Defendant's right to file any post-conviction motion under 28 U.S.C. § 2255, attacking his conviction or sentence, except an appeal based on ineffective assistance of counsel. (Ct. Rec. 179 ¶ 18). On January 24, 2008, Defendant was sentenced to a term of imprisonment of 210 months. (Ct. Rec. 235). Judgment was entered on February 7, 2008. (Ct. Rec. 243). No direct appeal was taken.
DISCUSSION
On January 27, 2009, Defendant moved the Court, pursuant to 28 U.S.C. § 2255, for an order affording him a direct appeal proceeding, claiming that his counsel failed to file a notice of appeal despite his request to do so. (Ct. Rec. 252). On February 9, 2009, Defendant filed a supplemental Section 2255 petition reiterating ground two of his initial Section 2255 petition. (Ct. Rec. 256).
On February 10, 2009, the Government filed a motion requesting that the Court vacate the judgment in this matter and reenter judgment, without an evidentiary hearing, in order to allow Defendant the option of filing a direct appeal. (Ct. Rec. 257). The Government directs the Court's attention to United States v. Sandoval-Lopez, 409 F.3d 1193, 1198 (9th Cir. 2005) (holding that a defendant is entitled to an evidentiary hearing to determine if his trial counsel failed to file a notice of appeal when so requested). The Ninth Circuit held in Sandoval-Lopez that, if the state does not object, the district court can forego a evidentiary hearing, assuming without deciding that the defendant's claim is true, and vacate and reenter the judgment in order to restart the 10-day appeal period. Id. at 1198. The Government makes a request for just such a procedure. (Ct. Rec. 257-2). The Government requests that the Court vacate then reenter judgment to enable the appeal period to restart in this case. (Ct. Rec. 257-2 ¶ 8).
CONCLUSION
The Government's requested procedure is authorized by Sandoval-Lopez and appears to be appropriate for this case. Accordingly, the Court being fully advised, IT IS HEREBY ORDERED as followed:
1. The Government's February 10, 2009, motion ( Ct. Rec. 257) is GRANTED.
2. Defendant's January 27, 2009, Section 2255 petition ( Ct. Rec. 252) is DISMISSED WITHOUT PREJUDICE.
3. Defendant's supplemental Section 2255 petition ( Ct. Rec. 256) is DISMISSED WITHOUT PREJUDICE.
4. The Clerk shall vacate the Court's February 7, 2008 judgment (Ct. Rec. 243) and then reenter said judgment in order to allow the direct appeal period to restart.
5. The District Court Executive shall close this file as well as the corresponding civil cases: CV-09-3011-FVS and CV-09-3016-FVS. IT IS SO ORDERED. The District Court Executive is directed to enter this order, furnish copies to DEFENDANT and counsel for the Government, and CLOSE THE FILES.