                                                                            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                            NOT FOR PUBLICATION                             SEP 01 2015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
