                                                                           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                             NOT FOR PUBLICATION                            MAR 08 2010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.


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