Lopez v. USA

Filing 27

ORDER re 26 Scheduling Order filed on June 19, 2014 will be STAYED. The Evidentiary Hearing scheduled for 9/2/14 is cancelled. Signed by District Judge Richard Voorhees on 6/23/14. (Pro se litigant served by US Mail.)(smj)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
DOCKET NO. 5:10CV124
DOCKET NO. 5:06CR41-14-RLV
__________________________________________
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v.
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JUAN LOPEZ
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__________________________________________)
UNITED STATES OF AMERICA

ORDER

THIS MATTER is before the Court on its own Motion.
Petitioner was convicted in this district on one count of conspiracy to possess with intent
to distribute methamphetamine, cocaine and cocaine base, in violation of 21 U.S.C. §§ 846,
841(a)(1), and 841(b)(1)(A), and a separate count of possessing with intent to distribute
methamphetamine and aiding and abetting the same, in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(A) and 18 U.S.C. § 2. After his criminal judgment became final Petitioner filed a
timely motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. The
Government filed a motion for summary judgment as to all claims in the § 2255 motion and this
Court granted the motion on August 27, 2013 and dismissed the § 2255 motion and Petitioner
appealed.
On April 30, 2014, the Fourth Circuit filed an unpublished per curiam opinion finding
that Petitioner was entitled to an evidentiary hearing on the issue of whether his trial counsel
failed to pursue plea negotiations with the Government even though Petitioner, as he contends,
specifically instructed him to do so.1

Further, on June 18, 2014, pursuant to the remand from the Fourth Circuit, the Court
ordered that an Evidentiary Hearing be scheduled in this matter. (Doc. #25) Consequently, an
order was filed scheduling the hearing for September 2, 2014. (Doc. #26) However, after the
hearing was scheduled the Government informed the Court that they filed a Petition For Panel
Rehearing with the Fourth Circuit. Consequently, the Fourth Circuit stayed the Mandate until
they can rule on the Petition For Rehearing. Therefore, the Court will stay its Order instructing
the Clerk’s Office to schedule an Evidentiary Hearing until the Fourth Circuit rules on the
Government’s Petition.
IT IS, THEREFORE, ORDERED that:
1.

Order filed on June 19, 2014, (Doc. #26) will be STAYED.

2. The Clerk’s Office cancel the Evidentiary Hearing scheduled for September 2, 2014.
(Doc.#26)

Signed: June 23, 2014

1

See United States v. Lopez, No. 13-7953, 2014 U.S. App. LEXIS 8149 (4th Cir. 2014) (unpublished)