Steven Villalona v. USA


Opinion issued by court as to Appellant Steven Justin Villalona. Decision: Vacated and Remanded. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link

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Case: 15-15230 Date Filed: 03/12/2018 Page: 1 of 2 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 15-15230 Non-Argument Calendar ________________________ D.C. Docket Nos. 6:14-cv-00162-GKS-DAB, 6:11-cr-00375-GKS-DAB-2 STEVEN JUSTIN VILLALONA, Petitioner-Appellant, versus UNITED STATES OF AMERICA, Respondent-Appellee. ________________________ Appeal from the United States District Court for the Middle District of Florida ________________________ (March 12, 2018) Before WILSON, WILLIAM PRYOR and JORDAN, Circuit Judges. PER CURIAM: 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 Case: 15-15230 Date Filed: 03/12/2018 Page: 2 of 2 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 (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. 2

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