United States District Court, D. Montana, Billings Division
ORDER DENYING § 2255 MOTION AND DENYING
CERTIFICATE OF APPEALABILITY
P. WATTERS, UNITED STATES DISTRICT COURT
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,
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.
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.
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.
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).
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.
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.
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).
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.
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.
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
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.
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).
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).
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
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.
Court appointed new counsel to represent Lopez. Counsel filed
an amended § 2255 motion (Doc. 265) that supersedes