Anton Acevedo v. James Yates

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NOT FOR PUBLICATION JUL 29 2014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

ANTON ACEVEDO, No. 10-56681

Petitioner - Appellant, D.C. No. 8:09-cv-00465-DOC

v.
MEMORANDUM*
JAMES A. YATES, Warden,

Respondent - Appellee.

Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding

Submitted July 22, 2014**

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

California state prisoner Anton Acevedo appeals from the district court’s

judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction

under 28 U.S.C. § 2253. We review de novo a district court’s denial of a habeas

*
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).
petition, see Collins v. Runnels, 603 F.3d 1127, 1130 (9th Cir. 2010), and we

reverse and remand.

Acevedo contends that his trial counsel provided ineffective assistance by

failing to file a notice of appeal after Acevedo’s 2007 resentencing. The district

court rejected this claim, reasoning that Acevedo could not establish prejudice

under Strickland v. Washington, 466 U.S. 688 (1984), because he did not show that

an appeal would have been successful. But a defendant does not need to show that

the appeal would have been meritorious to demonstrate prejudice, only that there is

a reasonable probability that he would have appealed but for counsel’s failure to

consult with him about an appeal. See Roe v. Flores-Ortega, 528 U.S. 470, 484

(2000); United States v. Sandoval-Lopez, 409 F.3d 1193, 1196 (9th Cir. 2005).

Accordingly, we remand for the district court to consider whether there was any

reasonable basis for the state court to reject Acevedo’s claim, applying the proper

standard for prejudice outlined in Flores-Ortega. See Harrington v. Richter, 131

S. Ct. 770, 784 (2011).

In light of our disposition, we decline to address Acevedo’s uncertified

claim at this time.

REVERSED and REMANDED.

2 10-56681