United States of America v. ABEL HERIBERTO FABIAN- BALTAZAR , AKA Abel Heriberto Fabia Baltazar

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
ABEL HERIBERTO FABIAN-
BALTAZAR , AKA Abel Heriberto
Fabia Baltazar,
Defendant-Appellant.
No. 15-16115
D.C. Nos.
1:14-cv-00984-
AWI
1:13-cr-00032-
AWI-BAM-1
OPINION
On Remand from the United States Supreme Court
Filed July 30, 2019
Before: Johnnie B. Rawlinson, Carlos T. Bea,
and Andrew D. Hurwitz, Circuit Judges.*
Per Curiam Opinion
* Following remand from the United States Supreme Court, Judge
Rawlinson and Judge Bea were drawn to replace Judge Kozinski and
Judge Keeley.

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2 UNITED S TATES V. FABIAN-BALTAZAR
SUMMARY**
28 U.S.C. § 2255
On remand from the Supreme Court, the panel vacated
the district court’s order denying Abel Heriberto Fabian-
Baltazar’s 28 U.S.C. § 2255 motion claiming, among other
things, that trial counsel rendered ineffective assistance by
failing to file a notice of appeal; and remanded for further
proceedings.
This court originally affirmed, holding that the district
court did not err by enforcing Fabian-Baltazar’s express
waiver of his right to collaterally attack his sentence. The
Supreme Court vacated this court’s judgment and remanded
for further consideration in light of Garza v. Idaho, 139
S. Ct. 738 (2019), which held that an attorney provides
ineffective assistance by failing to file a notice of appeal
after a client request that the attorney do so, even if that client
has signed an appeal waiver.
On remand from the Supreme Court, the government
declined to enforce Fabian-Baltazar’s collateral attack
waiver, so this court analyzed the case as involving only an
appeal waiver. The panel held that the district court, on
remand, should determine whether Fabian-Baltazar
expressly instructed his attorney to file a notice of appeal,
and if not, whether counsel failed to consult, and if so,
whether that failure constituted deficient performance.
** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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UNITED S TATES V. FABIAN-BALTAZAR 3
COUNSEL
Peggy Sasso, Assistant Federal Defender; Heather E.
Williams, Federal Defender; Office of the Federal Public
Defender, Fresno, California; for Defendant-Appellant.
Melanie L. Alsworth, Assistant United States Attorney;
Camil A. Skipper, Appellate Chief; McGregor Scott, United
States Attorney; United States Attorney’s Office, Fresno,
California; for Plaintiff-Appellee.
OPINION
PER CURIAM:
Fabian-Baltazar pleaded guilty to possession of 50 grams
or more of methamphetamine with intent to distribute, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A), after
entering into a plea agreement waiving the right to appeal or
collaterally attack his sentence. Fabian-Baltazar nonetheless
filed a 28 U.S.C. § 2255 motion attacking the sentence,
claiming among other things that trial counsel rendered
ineffective assistance by failing to file a notice of appeal.
The district court denied the § 2255 motion, and this
Court affirmed, holding that the district court did not err by
enforcing Fabian-Baltazar’s “express waiver of his right to
bring a 28 U.S.C. § 2255 petition.” United States v. Fabian-
Baltazar, 707 F. App’x 477, 478 (9th Cir. 2017). We noted
that a plea agreement that waives the right to collateral
review is unenforceable with respect to an ineffective
assistance claim challenging the voluntariness of the waiver,
but stressed that Fabian-Baltazar’s § 2255 motion did not

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4 UNITED S TATES V. FABIAN-BALTAZAR
challenge the voluntariness of his collateral review waiver.
Id.
Fabian-Baltazar petitioned for certiorari. The Supreme
Court granted the petition, vacated the judgment, and
remanded for further consideration in light of Garza v.
Idaho, 139 S. Ct. 738 (2019). See Fabian-Baltazar v. United
States, 139 S. Ct. 1289, 1289 (2019). We then ordered the
parties to file supplemental briefs addressing Garza. Having
considered that briefing, we vacate the order of the district
court and remand for further proceedings.
I
In Garza, the Supreme Court held that an attorney
provides ineffective assistance by failing to file a notice of
appeal after a client request that the attorney do so, even if
that client has signed an appeal waiver. 139 S. Ct. at 747.
Under Strickland v. Washington, a successful claim for
ineffective assistance requires not only proof of deficient
performance, but also resulting prejudice. 466 U.S. 668,
687–88, 692 (1984). But, in Garza, the Court held that
prejudice is presumed when the defendant is deprived of an
appeal that he waived but nonetheless tried to assert. 139 S.
Ct. at 749.
Unlike Garza, Fabian-Baltazar also waived his right to
collaterally attack his sentence. But, the government has
declined to enforce Fabian-Baltazar’s collateral attack
waiver on remand. Therefore, in contrast to the first time
this case was before us, we must analyze it as involving only
an appeal waiver.

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UNITED S TATES V. FABIAN-BALTAZAR 5
II
The parties agree that a remand is required in light of
Garza but disagree about the scope of the remand. Fabian-
Baltazar argues that we should simply reverse the district
court’s order and direct it to address the merits of his § 2255
motion. The government argues that, before proceeding to
the merits, the district court must first determine whether
Fabian-Baltazar requested his attorney to file a notice of
appeal.
The government’s view is in accord with Garza, which
held that “Garza’s attorney rendered deficient performance
by not filing the notice of appeal in light of Garza’s clear
requests.” 139 S. Ct. at 746 (emphasis added); see also id.
(“We have long held that a lawyer who disregards specific
instructions from the defendant to file a notice of appeal acts
in a manner that is professionally unreasonable.”) (quoting
Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000)). It appears
to have been uncontested in Garza that the defendant had
requested his attorney to file a notice of appeal. 139 S. Ct.
at 743, 746. But, the Court expressly left “undisturbed today
Flores-Ortega’s separate discussion of how to approach
situations in which a defendant’s wishes are less clear.”
139 S. Ct. at 746 n.9.
Because that discussion governs our analysis today, we
quote it in pertinent part:
If counsel has consulted with the defendant,
the question of deficient performance is
easily answered: Counsel performs in a
professionally unreasonable manner only by
failing to follow the defendant’s express
instructions with respect to an appeal. If
counsel has not consulted with the defendant,

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6 UNITED S TATES V. FABIAN-BALTAZAR
the court must in turn ask a second, and
subsidiary, question: whether counsel’s
failure to consult with the defendant itself
constitutes deficient performance.
Flores-Ortega, 528 U.S. at 478 (internal citation omitted).
Fabian-Baltazar’s § 2255 motion contends that he
expressly instructed his attorney to file a notice of appeal.
But, the government has never had the opportunity to
challenge that assertion, because both the district court’s and
this Court’s prior rulings held that the collateral attack
waiver nonetheless barred the § 2255 motion. The district
court therefore should determine on remand whether such an
instruction was given, and if not, whether counsel failed to
consult, and if so, whether that failure constituted deficient
performance. See United States v. Sandoval-Lopez, 409 F.3d
1193, 1198 (9th Cir. 2005) (“If a defendant, even one who
has expressly waived his right to appeal, files a habeas
petition after sentencing and judgment claiming that he
ordered his attorney to appeal and his attorney refused to do
so, two things can happen. The district court can hold an
evidentiary hearing to decide whether petitioner’s allegation
is true, and if it is, vacate and reenter the judgment, allowing
the appeal to proceed. Or, if the state does not object, the
district court can vacate and reenter the judgment without a
hearing and allow the appeal to proceed, assuming without
deciding that the petitioner’s claim is true.”); see also
Flores-Ortega, 528 U.S. at 478 (“We employ the term
‘consult’ to convey a specific meaning-advising the
defendant about the advantages and disadvantages of taking
an appeal, and making a reasonable effort to discover the
defendant’s wishes.”).

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UNITED S TATES V. FABIAN-BALTAZAR 7
III
For the reasons above, we VACATE the order of the
district court and remand for further proceedings consistent
with this opinion.

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