United States District Court, D. Montana, Billings Division
ORDER DENYING § 2255 MOTION AND DENYING
CERTIFICATE OF APPEALABILITY
P. WATTERS UNITED STATES DISTRICT COURT
case comes before the Court on Defendant/Movant Luis Felipe
Lopez-Rojas's motion to vacate, set aside, or correct his
sentence, pursuant to 28 U.S.C. § 2255. Lopez is a
federal prisoner proceeding pro se.
reviewing the motion, the Court has consulted the court
reporter's rough-draft transcript of the sentencing
hearing held on March 1, 2017. The United States will be
required to order the transcript for the file and for Lopez.
See 28 U.S.C. § 753(f).
the United States is required to respond, the Court must
determine whether "the motion and the files and records
of the case conclusively show that the prisoner is entitled
to no relief." 28 U.S.C. § 2255(b); see
also Rule 4(b), Rules Governing Section 2255 Proceedings
for the United States District Courts. A petitioner "who
is able to state facts showing a real possibility of
constitutional error should survive Rule 4 review."
Calderon v. United States Dist Court, 98 F.3d 1102,
1109 (9th Cir. 1996) ("Nicolas")
(Schroeder, C.J., concurring) (referring to Rules Governing
§ 2254 Cases). But the Court should "eliminate the
burden that would be placed on the respondent by ordering an
unnecessary answer." Advisory Committee Note (1976),
Rule 4, Rules Governing § 2254 Cases, cited in
Advisory Committee Note (1976), Rule 4, Rules Governing
§ 2255 Proceedings.
was charged with one count of conspiracy to possess with
intent to distribute 500 grams or more of a substance
containing methamphetamine, a violation of 21 U.S.C.
§§ 846 and 841(a)(1) (Count 1); and one count of
possessing the same with intent to distribute it, a violation
of 21 U.S.C. § 841(a)(1) (Count 2). If convicted of
either count, Lopez faced a statutory mandatory minimum
sentence of 120 months. Lopez retained attorney Jack Sands
for his defense. See 21 U.S.C. §
84l(b)(1)(A)(viii); Superseding Indictment (Doc. 28) at 2-3;
Notice (Doc. 25).
October 12, 2016, the parties filed a plea agreement. Lopez
agreed to plead guilty to Count 2 of the superseding
indictment, and the United States agreed to dismiss the
indictment and Count 1 of the superseding indictment. Lopez
admitted he possessed 500 or more grams of a substance
containing methamphetamine with the intent to distribute it.
See Plea Agreement (Doc. 74) at 2¶2, 3¶4.
October 13, 2016, a change of plea hearing was held.
Lopez's counsel pointed out that he intended to address
relief under the safety valve at the time of sentencing.
Lopez pled guilty in open court. Sentencing was set for
February 2, 2017. See Minutes (Doc. 80); Orders
(Docs. 93, 112); see also 18 U.S.C. § 3553(f);
the sentencing hearing convened on February 2, 2017, Lopez
had not debriefed with law enforcement officers. The parties
agreed to continue the hearing, and sentencing was reset for
March 1, 2017. See Minutes (Doc. 114); Order (Doc.
the continuance, Lopez still had not been interviewed when
sentencing reconvened on March 1. Detective Schillinger of
the Billings Police Department testified, as did Lopez. The
Court found Lopez did not qualify for the safety valve. The
presentence report was adopted without change. The advisory
guideline range was 135 to 168 months. Lopez was sentenced to
serve 135 months in prison, to be followed by a five-year
term of supervised release. See Minutes (Doc. 128);
Am. Judgment (Doc. 133) at 2-3; Am. Statement of Reasons
(Doc. 134) at 1 §§ I, III.
did not appeal. His conviction became final on March 15,
2017. See Gonzalez v. Thaler, 565 U.S. 134,
150 (2012). He timely filed his § 2255 motion on
February 9, 2018. See 28 U.S.C. § 2255(f)(1).
Claims and Analysis
§ 2255 motion sets forth many points of law, but his
claims are brief. See Mot. ...