Arechiga-Ramirez v. United States , 370 F. App'x 784 ( 2010 )

FILED
NOT FOR PUBLICATION MAR 08 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 07-16939
Plaintiff - Appellee, D.C. Nos. CV-07-00057-LRH
CR-05-00033-1-LRH
v.
JOSE MANUEL ARECHIGA-RAMIREZ, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted February 16, 2010 **
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
Jose Manuel Arechiga-Ramirez appeals pro se from the district court’s
judgment denying his 28 U.S.C. § 2255 motion. We have jurisdiction pursuant to
*
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).
DRS/Research
28 U.S.C. § 2253, and we affirm.
Arechiga-Ramirez contends that his appellate counsel was ineffective for
failing to advise him of his right to petition the Supreme Court for a writ of
certiorari. A federal defendant’s right to effective assistance of counsel on appeal
is grounded in the Due Process Clause of the Fifth Amendment. See United States
v. Baker, 256 F.3d 855, 859 n.2 (9th Cir. 2001). The Supreme Court has held that
this right does not extend to the filing of a petition for a writ of certiorari. See Ross
v. Moffitt, 417 U.S. 600, 617-18 (1974); see also Miller v. Keeney, 882 F.2d 1428,
1433 (9th Cir. 1989) (recognizing that “the Supreme Court has interpreted the due
process clause as not comprehending a right to counsel, and thus not including a
right to the effective assistance of counsel, for the filing of certiorari petitions”).
Counsel’s failure to advise Arechiga-Ramirez regarding his right to file such a
petition therefore did not violate his constitutional rights. Moreover, Arechiga-
Ramirez has failed to demonstrate that he suffered any prejudice as a result.
We construe the additional arguments in the opening and reply briefs as a
motion to expand the certificate of appealability. So construed, the motion is
denied. See 9th Cir. R. 22-1(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05
(9th Cir. 1999) (per curiam).
AFFIRMED.
DRS/Research 2 07-16939