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United States v. Martinez

United States District Court, D. Montana, Billings Division

March 26, 2019

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
ELISEO LOPEZ MARTINEZ, Defendant/Movant.

          ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY

          SUSAN P. WATTERS, UNITED STATES DISTRICT COURT

         On September 15, 2015, Defendant Eliseo Lopez Martinez filed a motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. Lopez filed in the Court of Appeals, which transferred the motion to this Court on December 2, 2015 (Doc. 197). Counsel was appointed to represent Lopez, and an amended § 2255 motion was filed on October 13, 2017.

         On June 22, 2018, the Court advised Lopez that one claim in his amended motion still did not allege sufficient facts to state a claim. Although he was represented by counsel, the Court extended a second opportunity to plead more specific facts. Lopez responded on September 24, 2018.

         I. Background

         On April 3, 2013, Lopez was indicted on charges of drug trafficking and possessing a firearm. Trial was initially set for June 4, 2013. The deadline for filing either a motion to change plea or notice of intent to proceed to trial was set for May 13, 2013. See Order (Doc. 37) at 2.

         On May 13, Lopez filed a motion to change his plea. He filed a plea agreement the following day. At the change of plea hearing on May 28, however, Lopez chose not to proceed. He had not filed a motion for new counsel, but he raised concerns about counsel's representation. Judge Haddon, who presided throughout the criminal case, explained that counsel must decide whether to file a motion to withdraw. He also explained that mere dissatisfaction with counsel's advice did not justify counsel's removal. The change of plea hearing was continued, and Lopez was required to decide by June 4, 2013, whether he wanted to go to trial or plead guilty. See Order (Doc. 1) at 2.

         On June 4, 2013, Lopez filed notice that he intended to proceed to trial. Trial was set for August 6, 2013. See Notice (Doc. 74); Order (Doc. 76).

         The next day, June 5, Lopez's counsel filed a motion to withdraw due to Lopez's "dissatisfaction with [counsel's] representation" and "lack of trust... in [counsel's] judgement and advice." Mot. to Withdraw (Doc. 77) at 4 ffif 8, 9. A hearing was held on June 20. Judge Haddon found that Lopez was willing to work with counsel and denied the motion. See Minutes (Doc. 88); Order (Doc. 91). Trial remained set for August 6.

         On July 15, 2013, Lopez filed another motion to change his plea. See Mot. (Doc. 95). A hearing was set for July 17. See Order (Doc. 97). On July 16, Lopez filed a motion to vacate the hearing on the grounds that he had again changed his mind and was "in the process of retaining alternative counsel to represent him." Mot. to Vacate (Doc. 99) at 2.

         The hearing convened as scheduled on July 17. After a discussion of the July 16 motion and Lopez's intentions, and after he had an opportunity to consult with his counsel, Lopez pled guilty to 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). See Indictment (Doc. 16) at 3-5; Plea Agreement (Doc. 54) at 313; Minutes (Doc. 100).

         At sentencing, Lopez was found responsible for bringing to Montana more than 800 grams of heroin, 2.13 kilograms of cocaine, and 92 pounds of methamphetamine. He was sentenced to serve 324 months in prison, to be followed by a five-year term of supervised release. Judgment was entered on October 22, 2013. See Minutes (Doc. 128); Judgment (Doc. 132) at 2-3.

         Lopez alleges that, on October 24, 2013, counsel mailed a copy of the judgment to him with a letter, written in Spanish, stating "Here I send you a copy of your judgment in your case. If you have any questions regarding this document please call or write to our office." Am. Mot. (Doc. 265) at 23 (noting Google translation). The letter "did not discuss any appeal rights." Id.

         Lopez also alleges that he contacted counsel's office "immediately after" sentencing and said that he wanted to appeal. He "called several times before anyone answered." He does not say whether these "several times" occurred in one day, over a couple of months, or somewhere in between. He claims he told the only person who answered his call that he wanted to appeal, and she said "they were done with my case and couldn't help anymore." Lopez Decl. (Doc. 277-1) at 2 f 6. In his pro se motion, Lopez responded to a preprinted form question as follows:

10. If your petition makes a claim regarding your conviction, sentence, or commitment that you or your attorney did not make on appeal, explain why the claim was not made on appeal:
When I called my Attorney and explain that the Judge had given only fourteen days to file the appeal, my Attorney said I can no longer help.

Pro Se § 2255 Mot. (Doc. 197) at 5.

         Lopez did not file a timely notice of appeal. His conviction became final on November 5, 2013. See Gonzalez v. Thaler, 565 U.S. 134, 150 (2012).

         On August 15, 2014, Lopez filed a, pro se notice of appeal. See Notice of Appeal (Doc. 154). In the Court of Appeals, he also filed a motion to proceed in forma pauperis and a motion for the appointment of counsel. All three documents were written in English. He did not file anything else. The appellate court issued an order to show cause why the appeal should not be dismissed as untimely, but Lopez did not respond. The appeal was dismissed "as untimely and for failure to comply with the order to show cause." See Order (Doc. 158) at 1, United States v. Lopez, No. 14-30167 (9th Cir. Nov. 14, 2014).

         In August 2015, Lopez, acting pro se, sought a sentence reduction under 18 U.S.C. § 3582(c)(2) and Guidelines Amendments 782 and 788. New counsel Cammi Woodward filed a brief on his behalf on November 23, 2015. See Mem. in Supp. (Doc. 191). The motion was denied. See Order (Doc. 192) at 1-3.

         On September 14, 2015, Lopez, still acting pro se, a petition for writ of habeas corpus in the Ninth Circuit Court of Appeals. On December 2, 2015, the petition was transferred to this Court as a motion under 28 U.S.C. § 2255. See Order (Doc. 196) at 1.

         This Court appointed new counsel to represent Lopez. Counsel filed an amended § 2255 motion (Doc. 265) that supersedes Lopez's ...


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