UNPUBLISHED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-cv-
00124-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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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. 28 U.S.C. § 2253(c)(1)(B) (2012);
see Slack v. McDaniel, 529 U.S. 473, 484 (2000) (discussing
standard for obtaining certificate of appealability). Following
careful review of the record, we grant a certificate of
appealability on the issue of whether the district court erred
in dismissing, without an evidentiary hearing, Lopez’s claim
that his trial counsel rendered ineffective 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] is entitled to no relief.” 28 U.S.C.
§ 2255(b). Lopez contends that the district court 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
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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 with the rules rather than
dismissing the motion outright. 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 Supreme Court has recently recognized
the right to “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
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is credited, a debatable 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 a certificate of appealability as to all remaining
issues. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the 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.
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