United States District Court, D. Nevada
Jennifer A. Dorsey United States District Judge
ORDER DENYING MOTION TO VACATE [ECF NO. 126]
November 17, 2016, federal prison inmate Antwan Fortenberry
dispatched a § 2255 motion challenging his 2015
conviction (via a guilty plea) for being a felon in
possession of a firearm. On December 16, 2016, I denied
Fortenberry's motion, finding that he was not entitled to
federal habeas relief on his IAC claims because he failed
to show that counsel was ineffective or that there was a
reasonable probability that, but for these alleged errors, he
would not have pleaded guilty and would have insisted on
going to trial. Three days later, the court received a
supplemental § 2255 motion, which was dated December 13,
2016-three days before my order denying Fortenberry's
initial § 2255 motion. The supplement contains the same
IAC claims as Fortenberry's first motion and adds
additional legal support for his claims.
his supplemental § 2255 motion was still pending,
Fortenberry filed a notice of appeal of my order denying the
initial § 2255 motion in the Ninth Circuit along with an
application to proceed in forma pauperis on appeal.
On February 17, 2017, the Ninth Circuit issued an order
denying without prejudice Fortenberry's IFP application.
The Ninth Circuit indicated in that order that
Fortenberry's § 2255 motion raises an
ineffective-assistance claim that I failed to address and
resolve in my dismissal order: that Fortenberry's counsel
was ineffective for failing to file a notice of appeal after
he asked her to do so, and the Cirucit remanded this case to
me to consider that claim.On February 22, 2017, I found that
Fortenberry had alleged a colorable IAC claim based on his
counsel's failure to file a notice of appeal, and I gave
the government until March 1, 2017, to notify the court if it
objected to me vacating and re-entering Fortenberry's
judgment so that he can file a timely notice of appeal
without the court first having to hold an evidentiary hearing
to determine whether Fortenberry's IAC allegation is
true. The government did not object, so I re-entered
Fortenbery's judgment of conviction to provide him the
opportunity to file a timely notice of appeal.
reviewed Fortenberry's supplemental § 2255 motion,
and I still find that it is clear from the motion,
memorandum, and the record in this case that Fortenberry is
not entitled to federal habeas relief on his claims that his
counsel was ineffective for failing to: inform him of the
consequences of pleading guilty as opposed to going to trial,
investigate, negotiate a more favorable plea deal, submit
evidence in mitigation of his sentence, discuss and make
objections to his pre-sentence investigation report, and
object to his sentence being substantively
unreasonable. And Fortenberry has already received
relief for his claim that his counsel was ineffective for
failing to file a notice of appeal on his behalf. I therefore
deny as moot Fortenberry's supplemental motion to vacate.
IT IS HEREBY ORDERED that Fortenberry's supplemental
motion to vacate under 28 U.S.C. § 2255 [ECF No. 126] is
DENIED as moot.
 ECF No. 124.
 ECF No. 125.
 Id. at 2-4 (applying the test
for IAC claims challenging guilty pleas from the United
States Supreme Court's decision in Hill v.
Lockhart, 474 U.S. 52 (1985)).
 ECF No. 126.
 ECF No. 132.
 ECF Nos. 134, 135.