USA V. GLENN SCOTT, No. 14-35807 (9th Cir. 2016)

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FILED JAN 26 2016 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 14-35807 D.C. Nos. 6:09-cr-00025-CCL 6:12-cv-00103-CCL v. MEMORANDUM* GLENN STEVEN SCOTT, Defendant - Appellant. Appeal from the United States District Court for the District of Montana Charles C. Lovell, District Judge, Presiding Submitted January 20, 2016** Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges. 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 * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). district court’s denial of a section 2255 motion, see United States v. AguirreGanceda, 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. 2 14-35807

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