United States v. Robert Swank, Sr. ( 2015 )

FILED
NOT FOR PUBLICATION SEP 01 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-35511
Plaintiff - Appellee, D.C. Nos. 1:13-cv-00122-SPW
1:10-cr-00086-SPW
v.
ROBERT TIMOTHY SWANK, Sr., MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Submitted August 25, 2015**
Before: McKEOWN, CLIFTON, and HURWITZ, Circuit Judges.
Federal prisoner Robert Timothy Swank, Sr., appeals from the district
court’s judgment dismissing his motion under 28 U.S.C. § 2255, and the district
court’s order denying his motion under Federal Rule of Civil Procedure 59(e). We
*
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).
have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We reverse and remand with
instructions.
Swank contends that the district court abused its discretion by dismissing his
section 2255 motion based on his failure to submit a signed request for counsel,
and by denying his Rule 59(e) motion, which included a signed request for
appointment of counsel. When an evidentiary hearing is ordered, appointment of
counsel for indigent section 2255 movants is mandatory. See Rule 8(c) of the
Rules Governing Section 2255 Proceedings, 28 U.S.C. foll. § 2255; United States
v. Duarte-Higareda, 68 F.3d 369, 370 (9th Cir. 1995) (order). In light of this
authority, the government agrees with Swank that this case should be remanded.
Accordingly, we reverse and remand for appointment of counsel and an evidentiary
hearing regarding Swank’s claim that trial counsel was ineffective when advising
Swank to plead guilty. We deny Swank’s request for an open remand to enable
him to reargue the claims that the district court denied on the merits without an
evidentiary hearing.
We treat Swank’s additional arguments as a motion to expand the certificate
of appealability. So treated, the motion is denied. See 9th Cir. R. 22-1(e); Hiivala
v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per curiam).
REVERSED and REMANDED.
2 14-35511