                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 29 2014

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


FERNANDO NELSON AYALA-                           No. 11-56487
RAMOS, a.k.a. Jose, a.k.a. Nelson
Fernando Ramos-Ayala,                            D.C. Nos.    2:10-cv-07648-PA
                                                              2:09-cr-00242-PA
               Petitioner - Appellant,

  v.                                             MEMORANDUM*

UNITED STATES OF AMERICA,

               Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     Percy Anderson, District Judge, Presiding

                              Submitted July 22, 2014**

Before:        GOODWIN, CANBY, and CALLAHAN, Circuit Judges.

       Federal prisoner Fernando Nelson Ayala-Ramos appeals from the district

court’s order denying his 28 U.S.C. § 2255 motion to vacate, set aside, or correct

his sentence. We have jurisdiction under 28 U.S.C. § 2253. We review de novo

          *
             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).
the district court’s denial of a section 2255 motion, see United States v. Aguirre-

Ganceda, 592 F.3d 1043, 1045 (9th Cir. 2010), and we vacate and remand.

      Ayala-Ramos contends that his counsel rendered ineffective assistance by

failing to comply with instructions to file a notice of appeal. The government

agrees that this claim is controlled by United States v. Sandoval-Lopez, 409 F.3d

1193, 1197-98 (9th Cir. 2005), which holds that when counsel fails to follow a

client’s instructions to file a notice of appeal, there is both deficient performance

and prejudice. Accordingly, we vacate and remand to the district court for an

evidentiary hearing to determine the veracity of Ayala-Ramos’s allegation that

counsel did not follow his instructions to file a notice of appeal. See id. at 1198.

Alternatively, if the government does not object, the district court may vacate and

reenter the judgment in Ayala-Ramos’s criminal proceedings, allowing Ayala-

Ramos to file a timely notice of appeal. See id.

      VACATED and REMANDED with instructions.




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