United States v. Angulo-Hernandez

8 F. App'x 652

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 18, 2001
• Docket: No. 99-55943; D.C. No. CV-98-01498-JSL
• Status: Published

Opinion

MEMORANDUM

**

Jose A. Angulo-Hernandez appeals pro se the district court’s denial of his 28 U.S.C. § 2255 motion challenging his sentence and convictions by guilty plea to various drug-related offenses. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

Angulo-Hernandez contends that his trial counsel was ineffective for failing to pursue a direct appeal. We review the district court’s denial of a section 2255 motion de novo and its factual findings for clear error. United States v. Navarro, 160 F.3d 1254, 1255 (9th Cir.1998), cert. denied, 527 U.S. 1011, 119 S.Ct. 2354, 144 L.Ed.2d 249 (1999).

In Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), the United States Supreme Court expressly set forth the factors to be considered in determining whether counsel was ineffective for failing to file a notice of appeal on the defendant’s behalf. See id. at 478-81 (concluding that the district court must determine whether counsel failed to follow the defendant’s express instructions concerning an appeal; whether counsel consulted or reasonably chose not to consult with the defendant regarding an appeal; and whether there is a reasonable probability that, but for counsel’s deficient performance, the defendant would have timely appealed).

Because the district court here did not make any findings addressing these factors and the record is insufficient to allow us to do so, we vacate the district court’s denial of the section 2255 motion and remand for further proceedings consistent with Flores-Ortega. See id. at 487.

VACATED and REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.