United States v. Robert Swank, Sr.

MEMORANDUM

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 have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We reyerse 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. foil. § 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…