VILLALONA v. UNITED STATES (2018)

Steven Villalona, a federal prisoner, appeals pro se the denial of his motion to vacate his sentence. 28 U.S.C. § 2255. We issued a certificate of appealability to address “whether Villalona was entitled to an evidentiary hearing on his claim that his counsel was ineffective for failing to file a motion to withdraw his guilty plea before the district court accepted the plea.” A defendant retains the right to withdraw his plea “for any reason or no reason” until “the [district] court accepts the plea.” See Fed. R. Crim. P. 11(d)(1). The United States concedes that the district court abused its discretion when it denied Villalona an evidentiary hearing because his allegations about promptly instructing his trial counsel to file a motion to withdraw, if true, would establish both that his counsel performed deficiently and that the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Because Villalona’s “motion and the files and records of the case [fail to] conclusively show that [he] is entitled to no relief,” see 28 U.S.C. § 2255(b), we vacate the order that denied Villalona’s motion to vacate and remand for the district court to hold an evidentiary hearing to determine whether the failure of counsel to file a motion to withdraw Villalona’s plea amounted to ineffective assistance.

VACATED AND REMANDED.

PER CURIAM: