ORDER GRANTING IN PART DEFENDANT'S MOTION UNDER 28 U.S.C. § 2255 [ECF No. 229]

GONZALO P. CURIEL, District Judge.

On March 20, 2018, the Court issued an order denying Defendant Ivan Tizoc's motion under 28 U.S.C. § 2255 in part, but deferring a ruling on his claim of ineffective assistance of counsel. ECF No. 233.1 Part of Defendant's ineffective assistance of counsel argument was an assertion that his trial counsel refused to file a timely notice of appeal despite Defendant's request that he do so. The Court instructed the Government to indicate whether it objected to the Court vacating and re-entering the criminal judgment so as to permit Tizoc to file a timely appeal. The Government filed a notice indicating that it did not object to the Court doing so. ECF No. 234. As a result, the Court ordered that the criminal judgment be vacated and immediately re-entered. ECF No. 235.

Though the judgment was re-entered, the Court failed to appoint Tizoc counsel to file his appeal. Tizoc has not filed a direct appeal of the judgment. On October 11, 2018, the Court ordered the United States to inform the Court whether it objects to the Court vacating and re-entering the judgment for a second time to permit Tizoc to file a timely appeal. ECF No. 242. The Government responded that it does not object. ECF No. 243.

For the reasons explained in the Court's earlier order, ECF No. 233, Defendant's § 2255 motion is DENIED except for his claim of ineffective assistance of counsel. With respect to Defendant's argument that his counsel was ineffective because counsel refused to file a timely notice of appeal, the Court GRANTS the § 2255 motion, VACATES the criminal judgment in this case, and re-enters an identical judgment. As the Court also explained in its previous ruling, the Court will not address "the other IAC arguments offered by Defendant in his [§ 2255] motion." Id. at 14. Now that the Government has declined to object to the Court re-entering judgment to permit Defendant to file a timely direct appeal, "Defendant may raise those [other IAC] grounds on his direct appeal," and "if they are rejected, he may raise them in a timely and appropriate § 2255 motion thereafter." Id.

With respect to the portion of Defendant's § 2255 motion that the Court has denied on the merits — Defendant's assertion that he did not knowingly and voluntarily waive his rights to appeal and collateral attack, see id. at 10-12, — the Court concludes that Defendant has not presented "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see also Slack v. McDaniel, 529 U.S. 473, 484 (2000). As a result, the Court declines to issue a certificate of appealability with respect to the portion of the § 2255 motion that the Court has denied.

This criminal case is referred to Magistrate Judge Barbara L. Major for appointment of counsel.

IT IS SO ORDERED.