CRISOLOGO v. U.S

ROBERT JONES,[fn*] District Judge [fn*] The Honorable Robert Clive Jones, United States District Judge for Nevada, by designation.

Petitioner Don Crisologo ("Crisologo") filed a Motion to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 ("Motion"). The Court has carefully reviewed the pleadings and relevant law in the matter. Crisologo maintains that after he was sentenced, he advised his counsel to file a Notice of Appeal. Despite this instruction to counsel, no notice was filed and his appellate rights were forfeited. This claim by Crisologo is sufficient to warrant inquiry. The Government has not submitted any documentation or affidavit to refute Crisologo's claim. The Court finds that Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, (2000) and United States v. Sandoval-Lopez, 409 F.3d 1193 (9^th Cir. 2005) are directly applicable to the instant case. Accordingly, in light of the Crisologo's claim the Court has the following options:

[t]he district court can hold an evidentiary hearing to decide whether [Crisologo's] allegation is true, and if it is, vacate and reenter the judgment, allowing the appeal to proceed. Or, if the state does not object, the district court can vacate and reenter the judgment without a hearing and allow the appeal to proceed, assuming without deciding that the petitioner's claim is true.

On October 12, 2005 the Government indicated that it did not object to the Court vacating and reentering the judgment in this matter without a hearing in order to revive Crisologo's ability to appeal to the Ninth Circuit. See Docket No. 46. Accordingly, the Court hereby vacates the previous judgment in CR 00-00047. The clerk is hereby ordered to renter the judgment against Crisologo.

Crisologo is hereby advised that he has 10 days from the entry of the judgment of conviction to file his Notice of Appeal in this matter. See FED. R. APP. P. 4(b)(1)(A)(I). He is further advised that if he is unable to pay the costs of the appeal he has the right to ask for permission to appeal in forma pauperis. See FED. R. APP. P. 24.

IT IS SO ORDERED.