Opinion
No. 14-35807
01-26-2016
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GLENN STEVEN SCOTT, Defendant - Appellant.
NOT FOR PUBLICATION
D.C. Nos. 6:09-cr-00025-CCL 6:12-cv-00103-CCL MEMORANDUM Appeal from the United States District Court for the District of Montana
Charles C. Lovell, District Judge, Presiding Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Federal prisoner Glenn Steven Scott appeals pro se from the district court's order denying his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. 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. Aguirre-Ganceda, 592 F.3d 1043, 1045 (9th Cir. 2010), and we vacate and remand.
Scott contends that his counsel rendered ineffective assistance by failing to follow his instructions to file a notice of appeal. The government concedes, and we agree, that the district court erred when it declined to hold an evidentiary hearing on the issue. See United States v. Sandoval-Lopez, 409 F.3d 1193, 1198 (9th Cir. 2005) (stating that an evidentiary hearing is required when a defendant alleges that his attorney refused to file a notice of appeal when ordered to do so). We therefore remand to the district court for an evidentiary hearing to determine whether Scott instructed his attorney to file a notice of appeal. See id. Alternatively, if the government does not object, the district court may vacate and reenter the judgment in Scott's criminal proceedings, allowing Scott to file a timely notice of appeal. See id.
VACATED and REMANDED.