CHANCEY TERREL FULLER v. UNITED STATES OF AMERICA (2017)

MEMORANDUM*

Chancey Terrel Fuller appeals pro se from the district court's judgment denying his 28 U.S.C. § 2255 motion. We have jurisdiction under 28 U.S.C. § 2253. We review de novo the district court's denial of a section 2255 motion, see United States v. Manzo, 675 F.3d 1204, 1209 (9th Cir. 2012), and we affirm.

Fuller contends that appellate counsel was constitutionally ineffective for failing to challenge his waiver of the right to counsel under Faretta v. California, 422 U.S. 806 (1975). As the government concedes, Fuller was misadvised of the potential penalty that he faced on one of the six charged offenses. However, because Fuller was otherwise correctly advised of the cumulative maximum term of imprisonment that he faced, the nature of the charges against him, and the dangers of self-representation, the record reflects that Fuller waived his right to counsel “with eyes open.” See id. at 835; see also United States v. Neal, 776 F.3d 645, 657-59 (9th Cir. 2015). Accordingly, Fuller has not shown that counsel's failure to raise this challenge on direct appeal was objectively unreasonable, or that the claim had a reasonable probability of success on appeal. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984); see also Smith v. Robbins, 528 U.S. 259, 288 (2000) (counsel need not raise every non-frivolous claim on appeal, and the presumption of effective appellate assistance is overcome “only when ignored issues are clearly stronger than those presented”) (internal quotations omitted).

We treat Fuller's additional arguments as a motion to expand the certificate of appealability and deny the motion. See 9th Cir. R. 22-1(e); Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999).

Fuller's motion for leave to file his untimely reply brief is granted. The Clerk is directed to file Fuller's reply brief (Docket Entry No. 45).

Fuller's motion for summary reversal is denied.

AFFIRMED.