UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-35592 Plaintiff-Appellee, D.C. Nos. v. 3:18-cv-05657- BHS TONY J. JACKSON, 3:14-cr-05242- Defendant-Appellant. RJB-2

OPINION

Appeal from the United States District Court for the Western District of Washington Benjamin H. Settle, District Judge, Presiding

Argued and Submitted October 8, 2021 Seattle, Washington

Filed January 3, 2022

Before: Richard A. Paez, Milan D. Smith, Jr., and Jacqueline H. Nguyen, Circuit Judges.

Opinion by Judge Nguyen 2 UNITED STATES V. JACKSON

SUMMARY *

28 U.S.C. § 2255

The panel affirmed in part and reversed in part the district court’s order denying Tony Junior Jackson’s 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence imposed following his plea, pursuant to a written plea agreement, of guilty to one count of conspiracy to engage in sex trafficking.

The panel held that Jackson’s notice of appeal was valid and timely because his two requests for a certificate of appealability, received before the deadline set forth in Federal Rule of Appellate Procedure 4(a)(1)(B), made clear his intention to appeal the district court’s order.

The panel held that Jackson’s § 2255 motion was not an improper “second or successive” motion under 28 U.S.C. § 2244(b) because the factual circumstances underlying the motion did not occur until after an earlier § 2255 motion had been resolved.

The panel affirmed the district court’s denial of Jackson’s claim that the government breached the plea agreement because, in addition to the written plea agreement, in which the government promised to recommend a Sentencing Guidelines range of 120–180 months in prison, Jackson also relied on the government’s oral promise that it would not offer his codefendant a lesser

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. JACKSON 3 sentence. The panel held that the record was not sufficient to overcome the presumption that Jackson’s written plea agreement and his sworn statements during the plea colloquy described the complete agreement reached between the parties. The panel further held that Jackson’s claim was barred by a collateral attack waiver. Under the terms of the plea agreement, Jackson waived his right to collaterally attack his sentence other than to challenge the effectiveness of counsel. The panel held that, because the government did not breach the plea agreement, the waiver was valid.

Reversing in part, the panel held that the district court abused its discretion by failing to consider Jackson’s pro se letter as a request to amend his § 2255 motion to add a claim of ineffective assistance of trial counsel based on counsel’s failure to ensure that the government’s oral promise was made a part of the record. The panel remanded for the district court to consider the merits of the ineffective assistance claim in the first instance.

COUNSEL Lila J. Silverstein (argued), Washington Appellate Project, Seattle, Washington, for Defendant-Appellant. Teal Luthy Miller (argued) and Ye-Ting Woo, Assistant United States Attorneys; Tessa M. Gorman, Acting United States Attorney, Western District of Washington; United States Attorney’s Office, Seattle, Washington; for Plaintiff- Appellee. 4 UNITED STATES V. JACKSON

OPINION NGUYEN, Circuit Judge:

Tony Junior Jackson appeals from the district cou