United States of America v. Kenneth Scott Gordon

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KENNETH SCOTT GORDON,
Defendant-Appellant.
No. 18-17202
D.C. Nos. 1:18-cv-00198-JMS-
KSC
1:11-cr-00479-JMS-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Hawaii
J. Michael Seabright, District Judge, Presiding
Submitted December 11, 2019**
Before: WALLACE, CANBY, and TASHIMA, Circuit Judges.
Federal prisoner Kenneth Scott Gordon appeals pro se from the district
court’s order denying his 28 U.S.C. § 2255 motion. We have jurisdiction under 28
U.S.C. § 2253, and we vacate and remand.
Gordon contends that counsel was constitutionally ineffective on direct
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
DEC 13 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 2 --

2 18-17202
appeal. As the government concedes, the district court erred by concluding that it
lacked jurisdiction to consider this constitutional claim in a section 2255
proceeding. Our decision in Williams v. United States, 307 F.2d 366 (9th Cir.
1962), overruled on other grounds by Kaufman v. United States, 394 U.S. 217
(1969), did not hold to the contrary. Williams held that a section 2255 motion
cannot be used to review this court’s action in dismissing an appeal; rather, relief
from the dismissal must be obtained from this court. See id. at 368. Gordon’s
section 2255 motion does not seek relief that only this court can provide. Should
Gordon’s claim have merit, the district court can grant relief by vacating Gordon’s
judgment of conviction. See 28 U.S.C. § 2555. We, accordingly, remand to the
district court to consider the merits of Gordon’s claim in the first instance.
We express no opinion as to Gordon’s claim that an evidentiary hearing is
warranted on remand.
In light of this disposition, we do not reach the parties’ remaining
arguments.
VACATED and REMANDED.

-- 2 of 2 --