                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            AUG 16 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   18-35519

              Plaintiff-Appellee,                D.C. Nos.    2:17-cv-00001-TOR
                                                              2:13-cr-00022-TOR-1
 v.

VALENTIN CARDENAS GONZALES,                      MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Eastern District of Washington
                     Thomas O. Rice, District Judge, Presiding

                      Argued and Submitted August 6, 2019**
                               Anchorage, Alaska

Before: TALLMAN, IKUTA, and N.R. SMITH, Circuit Judges.

      Valentin Gonzales appeals the district court’s denial of his 28 U.S.C. § 2255

motion challenging his conviction for two counts of Aggravated Sexual Abuse of a

Minor for touching victim E.A. “not through the clothing.” See 18 U.S.C.


      *
             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. See Fed. R. App. P. 34(a)(2).
§ 2246(2)(C). We have jurisdiction under 28 U.S.C. § 1291, and we reverse and

remand for resentencing.

      1.     The district court erred in denying Gonzales’s claim of ineffective

assistance of counsel (IAC) arising from trial counsel’s failure to object to

inadmissible testimony on hearsay grounds. An IAC claim requires a showing that

counsel’s performance was deficient, and that the deficient performance prejudiced

the defense.1 Strickland v. Washington, 466 U.S. 668, 687 (1984). Prejudice

occurs when counsel’s errors “undermine confidence in the outcome.” Harrington

v. Richter, 562 U.S. 86, 104 (2011); Strickland, 466 U.S. at 696 (“[A] verdict or

conclusion only weakly supported by the record is more likely to have been

affected by errors than one with overwhelming record support.”). Our prior

panel’s determination on direct review—that admission of the evidence “was

prejudicial and affected Gonzales’s substantial rights,” Gonzales, 629 Fed. App’x.


      1
        The district court found Gonzales had shown deficient performance under
the law of the case doctrine, and the Government forfeited any argument to the
contrary. See United States v. McEnry, 659 F.3d 893, 902 (9th Cir. 2011). Our
prior decision on direct review left open whether trial counsel was deficient for
failing to object on hearsay grounds until “a record is made of the reasons for
action or inaction of counsel.” United States v. Gonzales, 629 Fed. App’x. 796,
798 n.5 (9th Cir. 2015) (unpublished). Moreover, failing to object to an error
deemed “plain” does not necessarily render counsel deficient under Strickland.
Thus, the Government was free to argue on collateral review (both before the
district court and on appeal) that the determination on direct review did not
necessarily compel the court to find counsel was deficient, but failed to do so.
                                           2
at 798—required the district court to conclude there was prejudice for purposes of

Strickland. See United States v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997);

accord United States v. Dominguez Benitez, 542 U.S. 74, 81–84 (2004) (citing

Strickland in defining prejudice in the plain error context).

      The Government argues that, even if admission of the hearsay testimony

undermines confidence in the two convictions for Aggravated Sexual Abuse of a

Minor (the counts relating to victim E.A.), Gonzales cannot show prejudice. He is

serving concurrent 30-year sentences on two counts of Abusive Sexual Contact

with a Minor involving a different victim. However, upon our vacatur of the

counts involving E.A., the district court has jurisdiction to “resentence him . . . or

correct the sentence as may appear appropriate.” See 28 U.S.C. § 2255(b). The

decision to “conduct a full resentencing on all remaining counts of conviction

. . . rests within the sound discretion of the district court.” Troiano v. United

States, 918 F.3d 1082, 1087 (9th Cir. 2019), cert. denied, 2019 WL 2124339 (June

17, 2019).

      2.     We decline to consider Gonzales’s uncertified appellate IAC claim,

because Gonzales has not made “substantial showing of the denial of a

constitutional right.” See 28 U.S.C. § 2253(c)(2). Gonzales has no viable

appellate IAC claim absent an arguable underlying due process violation. See


                                           3
Shah v. United States, 878 F.2d 1156, 1162 (9th Cir. 1989) (“The failure to raise a

meritless legal argument does not constitute ineffective assistance of counsel.”

(quoting Baumann v. United States, 692 F.2d 565, 572 (9th Cir. 1982))). We

discern no due process issue, because the district court did not force Gonzales to

choose between taking the stand and eliciting exculpatory hearsay through cross-

examination. Rather, it preserved the possibility of admitting the hearsay under

other exceptions to the hearsay rule provided Gonzales “offer[ed] such statements,

with advance notice to the Court, outside the hearing of the jury, so the Court can

rule on their admissibility at that time.”

      REVERSED and REMANDED.




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