United States of America v. Tracy Eldon Lewis

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).
SMS/Research
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TRACY ELDON LEWIS,
Defendant - Appellant.
No. 07-35769
D.C. Nos. CV-06-00056-CCL
CR-05-00007-CCL
MEMORANDUM *
Appeal from the United States District Court
for the District of Montana
Charles C. Lovell, District Judge, Presiding
Submitted March 16, 2010**
Before: SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.
Federal prisoner Tracy Eldon Lewis appeals from the district court’s order
denying his motion for relief under 28 U.S.C. § 2255. We have jurisdiction
FILED
APR 01 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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pursuant to 28 U.S.C. § 2253, and we vacate and remand for an evidentiary
hearing.
Lewis contends that his counsel rendered ineffective assistance by failing to
file a notice of appeal. The Government agrees this claim is controlled by United
States v. Sandoval-Lopez, 409 F.3d 1193, 1197-98 (9th Cir. 2005), which holds
that it is ineffective assistance of counsel to refuse to file a notice of appeal when
requested, even if doing so is contrary to a plea agreement. Accordingly, we
remand this claim to the district court for an evidentiary hearing as required by
Sandoval-Lopez.
Lewis’ motion to expand the certificate of appealability is denied. See 9th
Cir. R. 22-1(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999)
(per curiam).
VACATED and REMANDED for an evidentiary hearing.

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