US v. Juan Lopez
Filing
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion-- Originating case number: 5:06-cr-00041-RLV-DCK-14,5:10-cv-00124-RLV. Copies to all parties and the district court/agency. [999347124].. [13-7953]
Appeal: 13-7953
Doc: 9
Filed: 04/30/2014
Pg: 1 of 4
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7953
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JUAN LOPEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.
Richard L.
Voorhees, District Judge.
(5:06-cr-00041-RLV-DCK-14; 5:10-cv00124-RLV)
Submitted:
April 22, 2014
Decided:
April 30, 2014
Before AGEE and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Juan Lopez, Appellant Pro Se.
Thomas Richard Ascik, Assistant
United States Attorney, Jill Westmoreland Rose, OFFICE OF THE
UNITED STATES ATTORNEY, Asheville, North Carolina; Kevin Zolot,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
Appeal: 13-7953
Doc: 9
Filed: 04/30/2014
Pg: 2 of 4
PER CURIAM:
Juan Lopez seeks to appeal the district court’s order
denying relief on his 28 U.S.C. § 2255 (2012) motion.
The order
is not appealable unless a circuit justice or judge issues a
certificate of appealability.
see Slack
v.
McDaniel,
529
28 U.S.C. § 2253(c)(1)(B) (2012);
U.S.
473,
484
(2000)
(discussing
standard for obtaining certificate of appealability).
careful
review
of
the
record,
we
grant
a
Following
certificate
of
appealability on the issue of whether the district court erred
in
dismissing,
that
his
without
trial
an
counsel
evidentiary
rendered
hearing,
ineffective
Lopez’s
claim
assistance
by
failing to initiate plea negotiations after Lopez directed him
to do so.
An
evidentiary
hearing
is
required
“[u]nless
the
motion and the files and records of the case conclusively show
that
the
[movant]
§ 2255(b).
Lopez
is
entitled
contends
that
to
the
no
relief.”
district
court
28
U.S.C.
erred
by
crediting trial counsel’s affidavit over his claims that counsel
did not engage in plea negotiations after Lopez directed him to
do so.
We note that Lopez’s and trial counsel’s accounts of
what occurred are starkly opposed.
We also note that Lopez’s
§ 2255 motion was not in conformity with the requirements of
Rule 2(b)(5) of the Rules Governing Section 2255 Proceedings,
which requires that a § 2255 motion “be signed under penalty of
2
Appeal: 13-7953
Doc: 9
Filed: 04/30/2014
Pg: 3 of 4
perjury by the movant or by a person authorized to sign it for
the movant.”
The commentary to the Rules indicates that the
appropriate remedy for a violation is to allow the movant to
bring his
motion
into
conformity
dismissing the motion outright.
with
the
rules
rather
than
See Kafo v. United States, 467
F.3d 1063, 1069-71 (7th Cir. 2006) (remanding to allow movant to
conform motion to rules).
The district court did not give Lopez the opportunity
to
bring
his
§ 2255
motion
into
conformity
with
the
rules,
instead relying on trial counsel’s affidavit to reject Lopez’s
claim on the merits.
the
right
to
The Supreme Court has recently recognized
“effective
counsel
during
plea
negotiations.”
Missouri v. Frye, 132 S. Ct. 1399, 1407-08 (2012); see Lafler v.
Cooper, 132 S. Ct. 1376, 1384 (2012) (same).
While there is no
constitutional right to a plea agreement, see Weatherford v.
Bursey, 429 U.S. 545, 561 (1977), and the decision to initiate
plea negotiations is ordinarily a strategic decision within the
purview of defense counsel, Hawkman v. Parratt, 661 F.2d 1161,
1171
(8th
Cir.
1981),
counsel
is
still
required
to
be
a
“reasonably effective advocate” regarding the decision to seek a
plea bargain.
Brown v. Doe, 2 F.3d 1236, 1246 (2d Cir. 1993).
Here, the evidence adduced at trial was so overwhelming that, if
Lopez’s contention that he not only sought to enter a guilty
plea but also directed counsel to negotiate with the Government
3
Appeal: 13-7953
is
Doc: 9
Filed: 04/30/2014
credited,
a
debatable
Pg: 4 of 4
question
arises
regarding
the
effectiveness of trial counsel’s assistance.
Accordingly, we grant a certificate of appealability
on
Lopez’s
claim
that
his
trial
counsel
was
ineffective
for
failing to initiate plea negotiations with the Government after
Lopez directed him to do so, vacate the district court’s order,
and remand for further proceedings consistent with this opinion. ∗
We
deny
issues.
legal
before
a
certificate
of
appealability
as
to
all
remaining
We dispense with oral argument because the facts and
contentions
this
court
are
adequately
and
argument
presented
would
not
in
aid
the
the
materials
decisional
process.
VACATED AND REMANDED
∗
By this disposition, we express no view as to either the
veracity of Lopez’s version of events or the proper disposition
of this claim, leaving those determinations in the first
instance to the district court.
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?