                                                                            FILED
                              NOT FOR PUBLICATION                            APR 01 2010

                                                                         MOLLY C. DWYER, CLERK
                       UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



 UNITED STATES OF AMERICA,                        No. 07-35769

                Plaintiff - Appellee,             D.C. Nos. CV-06-00056-CCL
                                                            CR-05-00007-CCL
   v.

 TRACY ELDON LEWIS,                               MEMORANDUM *

                Defendant - Appellant.



                      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




          *
             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).

SM S/Research
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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