United States v. Josefina Mangoba Banaga , 443 F. App'x 262 ( 2011 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 15 2011
MOLLY C. DWYER, CLERK
UNITED STATES OF AMERICA, No. 09-10347 U.S. COURT OF APPEALS
Plaintiff - Appellee, D.C. No. 2:03-cr-00064-WBS-2
v.
MEMORANDUM*
JOSEFINA MANGOBA BANAGA,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, Senior District Judge, Presiding
Submitted July 13, 2011**
San Francisco, California
Before: SILVERMAN and GRABER, Circuit Judges, and LYNN,*** District
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. Fed. R. App. P. 34(a)(2).
***
The Honorable Barbara M. G. Lynn, United States District Judge for
the Northern District of Texas, sitting by designation.
Petitioner Josefina Mangoba Banaga appeals from the district court’s denial
of her motion for relief under 28 U.S.C. § 2255, challenging her lawyer’s
performance as constitutionally deficient during her trial on charges of health care
fraud. The government argues that Petitioner filed her § 2255 motion too late and
that, as a consequence, we lack jurisdiction to consider it. In the alternative, the
government argues that the district court correctly denied the motion on its merits.
We review de novo the denial of a § 2255 motion. United States v. Withers, 638
F.3d 1055, 1061 (9th Cir. 2011).
I. Jurisdiction
Petitioner filed her § 2255 motion on February 4, 2009. The district court
denied the motion on its merits on March 23, 2009. Following a remand from
Petitioner’s direct appeal on an issue unrelated to the claim raised in Petitioner’s
§ 2255 motion, the district court resentenced Petitioner on August 17, 2009.
Petitioner filed her notice of appeal on August 19, 2009, two days after the court
imposed her new sentence but more than 60 days after the district court denied her
§ 2255 motion on the merits. The government argues that we lack jurisdiction to
review the denial of the § 2255 motion because Petitioner failed to comply with
Federal Rule of Appellate Procedure 4(a)(1)(B), which requires that the notice of
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appeal "be filed . . . within 60 days after the judgment or order appealed from is
entered."
In our circuit, however, we follow a "clear, easy-to-follow rule" with respect
to the proper time for filing a § 2255 motion: "In ‘cases in which we either
partially or wholly reverse a defendant's conviction or sentence, or both, and
expressly remand to the district court . . ., the judgment does not become final, and
the [§ 2255] statute of limitations does not begin to run, until the district court has
entered an amended judgment and the time for appealing that judgment has
passed.’" United States v. LaFromboise, 427 F.3d 680, 683–84 (9th Cir. 2005)
(alterations in original) (quoting United States v. Colvin, 204 F.3d 1221, 1225 (9th
Cir. 2000)). In LaFromboise, we reasoned that "[u]ntil the district court enters an
amended judgment of conviction [on remand], [a petitioner’s] § 2255 motion is in
fact premature, rather than untimely" because the district court may not "review a
section 2255 motion until the direct appeal is resolved." Id. at 686 (internal
quotation marks omitted). It therefore does not matter that, as the government
observes, Petitioner’s motion had nothing to do with her resentencing. Under
Ninth Circuit law, the time to file a § 2255 motion always runs from the date of the
final judgment. Because Rule 4(a)(1)(B) imposes a 60-day time limit running from
the date of the "judgment or order appealed from," we hold that Petitioner timely
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filed her notice of appeal by filing it within 60 days of the final judgment. We
therefore have jurisdiction to consider the merits of her appeal.
II. The Ineffective Assistance of Counsel Claim1
Petitioner challenges her trial lawyer’s effectiveness by arguing that he
should have called her as a witness. To succeed on her claim, Petitioner must
show that her lawyer made an "objectively unreasonable" decision not to call her to
testify in the circumstances. United States v. Sanchez-Cervantes, 282 F.3d 664,
671–72 (9th Cir. 2002) (citing Strickland v. Washington, 466 U.S. 668 (1984)).
She also must demonstrate a reasonable likelihood that, had her lawyer called her
to testify, the jury would have acquitted her of the charges. Id. Petitioner’s claim
fails to satisfy either requirement.
Petitioner’s lawyer reasonably advised Petitioner not to testify. After the
government rested, the lawyer assessed the strength of the government’s case and
found it to be relatively weak. The lawyer then considered the consequences of
1
To the extent that Petitioner argues that her lawyer denied her the
constitutional right to testify at her trial, her argument fails. Petitioner’s lawyer
informed her of her right to testify but advised her against doing so, and Petitioner
agreed to follow her lawyer’s advice. By agreeing to follow her lawyer’s
reasonable advice, Petitioner waived her right to testify. United States v. Pino-
Noriega, 189 F.3d 1089, 1096 (9th Cir. 1999). In any event, the district court
issued a certificate of appealability solely on the issue "whether her trial counsel
rendered ineffective assistance by not calling [Petitioner] to testify as a witness at
trial." We therefore focus our discussion on that single issue.
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calling Petitioner as a witness and determined that the risks outweighed the
benefits. In particular, Petitioner’s co-defendant’s lawyer threatened to call his
client to rebut Petitioner’s testimony if Petitioner testified. The co-defendant’s
testimony would have plugged a hole left open by the government’s evidence,
thereby strengthening the government’s case. Petitioner’s lawyer reasonably
decided not to take that risk. Because the lawyer’s advice was not "objectively
unreasonable," it was not constitutionally deficient.2 Id. at 672.
AFFIRMED.
2
Although we need not address the prejudice prong of the Strickland test,
Sanchez-Cervantes, 282 F.3d at 672, we observe that Petitioner’s claim fails on
that prong, too. She has not demonstrated a reasonable likelihood that her
testimony would have led to a different outcome.
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