USA v. Rosales-Herrera et al

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23cr871-CAB
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA,
Plaintiff,
v.
FELIPE ROSALES HERRERA (1),
Defendant.
Case No.: 23cr871-CAB
SUPPLEMENTAL ORDER ON
MOTION TO VACATE SENTENCE
PURSUANT TO 28 U.S.C. § 2255
[DOC. NO. 175]
Before the Court is the motion of defendant Felipe Rosales Herrera to vacate his
sentence pursuant to 28 U.S.C. § 2255, based on his assertion of ineffective assistance of
counsel. [Doc. No. 175.] Government filed a response. [Doc. No. 180.] On March 11,
2026, the Court issued an order denying defendant’s motion on his first six asserted
grounds. The Court however requested further briefing from the government on the
defendant’s seventh asserted ground, failure of his counsel to file a requested notice of
appeal. [Doc. No. 183.]
Defendant filed a late reply brief on March 13, 2026, after the Court issued its order.
[Doc. No. 184.] Having reviewed the defendant’s submission, the Court finds no basis to
reconsider or change its order, denying the claim of ineffective assistance of counsel on
defendant’s asserted grounds one through six.
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23cr871-CAB
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The government filed its response to the Court’s request for further briefing on the
seventh ground on March 16, 2026. [Doc. No. 185.]
Defendant asserted that he requested Attorney Smith to file a notice of appeal
following his sentencing and counsel failed to do so. [Doc. No. 175-1 at 9, 175-2 at 3.]
Attorney Smith contended in his affidavit that he advised defendant he waived his right to
appeal and that at no time before, during or after sentencing did the defendant request he
file a notice of appeal. [Doc. No. 180-2 at 1.]
Failure to file a notice of appeal when requested to do so carries a presumption of
ineffectiveness and prejudice. United States v. Sandoval-Lopez, 409 F.3d 1193, 1197 (9th
Cir. 2005). Regardless of whether it is contrary to the plea agreement and potentially
harmful to the client, it is ineffective assistance of counsel to refuse to file a notice of appeal
when the client requests it. Id.
In the instant case, defendant alleges he requested counsel file a notice of appeal and
counsel asserts no such request was made. Counsel’s records however suggest that an
appeal may have been discussed, as reflected in a client meeting note dated October 15,
2024, four days after the sentencing hearing, that references an action item “Appeal time
frame?” [Doc. No. 180-4 at 34.]
In this situation, the Court may order an evidentiary hearing to determine if
defendant’s claim that he requested counsel notice an appeal is true. Alternatively, if the
government does not object, the Court can vacate and reenter the judgment without a
hearing, and allow an appeal to proceed, without deciding the defendant’s claim.
Sandoval-Lopez, 409 F.3d at 1198.
The government has now filed its notice of non-opposition to the Court vacating and
reentering the judgment in this case to allow the defendant to notice an appeal, without
deciding whether the defendant made a request for counsel to file an appeal, and without
an evidentiary hearing. [Doc. No. l85.]
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Therefore, the Court hereby vacates the defendant’s sentence and reenters the
judgment in this case, thereby allowing the defendant to notice an appeal if he elects to do
so.
IT IS SO ORDERED.
Dated: March 18, 2026
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