United States of America v. JESUS GUADALUPE SALAZAR, AKA Jesus Guadalupe Torres

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JESUS GUADALUPE SALAZAR, AKA
Jesus Guadalupe Torres,
Defendant-Appellant.
No. 21-17117
D.C. Nos. 3:20-cv-04497-WHO
3:18-cr-00251-WHO-1
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
William Horsley Orrick, District Judge, Presiding
Submitted December 7, 2022**
San Francisco, California
Before: BRESS and VANDYKE, Circuit Judges, and RESTANI,*** Judge.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.
FILED
DEC 9 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2
Jesus Guadalupe Salazar appeals the district court’s denial of his 28 U.S.C. §
2255 motion to correct his sentence, arguing ineffective assistance of counsel. He
asserts his counsel failed to file an appeal of a gun enhancement applied to his
sentence. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Because
the parties are familiar with the history of this case, we need not recount it here.
We review de novo a district court’s decision to deny a 28 U.S.C. § 2255
motion raising a claim of ineffective assistance of counsel. See United States v.
Juliano, 12 F.4th 937, 940 (9th Cir. 2021); United States v. Roberts, 5 F.3d 365,
370–72 (9th Cir. 1993). The district court’s factual findings are reviewed for clear
error. Roberts, 5 F.3d at 368. There is no basis to conclude that counsel was
ineffective. Salazar waived his opportunity for an evidentiary hearing in the
district court proceedings below and provided no evidence to support his statement
that he requested his counsel file an appeal of his sentencing hearing. His counsel,
meanwhile, provided contemporaneous notes explicitly stating that Salazar did not
want to file an appeal. Salazar’s argument is not convincing, nor does it overcome
Strickland deference to counsel. Strickland v. Washington, 466 U.S. 668, 689–90
(1984) (“Judicial scrutiny of counsel’s performance must be highly deferential[,]”
and “counsel is strongly presumed to have rendered adequate assistance.”).
Salazar contends that his counsel’s in-court statements triggered a duty to file an
appeal. But no language used in counsel’s oral advocacy triggered such a duty.

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3
Cf. Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (“[A] defendant who explicitly
tells his attorney not to file an appeal plainly cannot later complain that, by
following his instructions, his counsel performed deficiently.”).
AFFIRMED.

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