Fernando Nelson Ayala- Ramos, a.k.a. Jose, a.k.a. Nelson Fernando Ramos-Ayala v. United States of America

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FERNANDO NELSON AYALA-
RAMOS, a.k.a. Jose, a.k.a. Nelson
Fernando Ramos-Ayala,
Petitioner - Appellant,
v.
UNITED STATES OF AMERICA,
Respondent - Appellee.
No. 11-56487
D.C. Nos. 2:10-cv-07648-PA
2:09-cr-00242-PA
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted July 22, 2014**
Before: GOODWIN, CANBY, and CALLAHAN, Circuit Judges.
Federal prisoner Fernando Nelson Ayala-Ramos appeals from the district
court’s order denying his 28 U.S.C. § 2255 motion to vacate, set aside, or correct
his sentence. We have jurisdiction under 28 U.S.C. § 2253. We review de novo
FILED
JUL 29 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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the district court’s denial of a section 2255 motion, see United States v. Aguirre-
Ganceda, 592 F.3d 1043, 1045 (9th Cir. 2010), and we vacate and remand.
Ayala-Ramos contends that his counsel rendered ineffective assistance by
failing to comply with instructions to file a notice of appeal. The government
agrees that this claim is controlled by United States v. Sandoval-Lopez, 409 F.3d
1193, 1197-98 (9th Cir. 2005), which holds that when counsel fails to follow a
client’s instructions to file a notice of appeal, there is both deficient performance
and prejudice. Accordingly, we vacate and remand to the district court for an
evidentiary hearing to determine the veracity of Ayala-Ramos’s allegation that
counsel did not follow his instructions to file a notice of appeal. See id. at 1198.
Alternatively, if the government does not object, the district court may vacate and
reenter the judgment in Ayala-Ramos’s criminal proceedings, allowing Ayala-
Ramos to file a timely notice of appeal. See id.
VACATED and REMANDED with instructions.
2 11-56487

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