Lopez v. United States

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

EASTERN DIVISION

______________________________________________________________________________

ROLANDO BANZAN LOPEZ, )

)

Movant, )

v. ) No. 1:21-cv-01097-STA-jay

)

UNITED STATES OF AMERICA, )

)

Respondent. )

______________________________________________________________________________

ORDER DENYING MOVANT’S MOTION TO VACATE, SET ASIDE, OR CORRECT

SENTENCE PURSUANT TO 28 U.S.C. § 2255

ORDER ON APPELLATE ISSUES

______________________________________________________________________________

Before the Court is Movant Rolando Banzan Lopez’s Motion to Vacate, Set Aside, or

Correct Sentence Pursuant to 28 U.S.C. § 2255 (ECF No. 1). Lopez, who is representing himself,

is an inmate, Bureau of Prisons register number 36792-079, currently housed at the United States

Penitentiary McCreary in Pine Knot, Kentucky. The United States of America has responded in

opposition to Lopez’s request, and Lopez has filed a reply brief. For the reasons set forth below,

the Motion is DENIED.

BACKGROUND

The government initiated a prosecution against Lopez by filing a sealed criminal complaint

on December 8, 2017. The Clerk of Court docketed the criminal complaint as case number 1:17-

cr-10105. The government supported its allegations with the affidavit of Drug Enforcement

Agency Task Force Officer Adam Prince. According to TFO Prince’s affidavit, Lopez and four

other individuals had engaged in drug trafficking in West Tennessee in violation of the Controlled

Substances Act. Lopez was arrested on December 12, 2017, and brought before the United States

Magistrate Judge for an initial appearance on the charges the following day. At the conclusion of

the initial appearance, the Magistrate Judge appointed CJA panel member John Holton, Esq. to

represent Lopez.

On January 3, 2018, a grand jury returned an indictment (no. 1:17-cr-10105, ECF No. 60),

charging Lopez with three offenses. Count 1 charged Lopez and others with conspiring to

distribute and possess with the intent to distribute 50 grams or more of actual methamphetamine,

its salts, isomers, or salts of isomers, in violation of 21 U.S.C. § 846. Count 2 charged Lopez and

others with aiding and abetting each other in the distribution or attempted distribution and the

possession with the intent to distribute or attempted possession with the intent to distribute 50

grams or more of actual methamphetamine, its salts, isomers, or salts of isomers, in violation of

21 U.S.C. § 841(a)(1). Finally, Count 3 charged Lopez with distributing or attempting to distribute

and possessing with the intent to distribute or attempting to possess with the intent to distribute a

mixture and substance containing a detectable amount of methamphetamine in violation of 21

U.S.C. § 841(a)(1). Later, on January 22, 2018, the grand jury superseded the indictment to name

more co-conspirators and allege additional charges against Lopez’s co-conspirators. The

superseding indictment (no. 1:17-cr-10105, ECF No. 71) charged the same counts against Lopez

but altered the charge in Count 3 to allege that Lopez had distributed or attempted to distribute and

possessed with the intent to distribute or attempted to possess with the intent to distribute 50 grams

or more of actual methamphetamine, its salts, isomers, or salts of isomers.

After the entry of an initial scheduling order, the Court amended the case management

order to set January 18, 2019, as the deadline for the parties to submit a plea agreement. Am.

Scheduling Order Sept. 28, 2018 (no. 1:17-cr-10105, ECF No. 211). The Court set a jury trial to

begin March 4, 2019. On October 25, 2018, the Court denied Lopez’s motion to suppress

communications intercepted through the use of six Title III wiretaps. Sealed Order Denying Def.’s

Mot. to Suppress Oct. 25, 2018 (no. 1:17-cr-10105, ECF No. 216).

On February 13, 2019, the parties notified the Court that they had reached an out-of-court

agreement to resolve the charges against Lopez. Lopez had agreed to plead guilty to the conspiracy

charged in Count 1 of the Superseding Indictment in exchange for the government’s agreement to

dismiss the remaining counts against Lopez. As part of the plea bargain, Lopez waived his right

to appeal, unless his sentence exceeded the statutory maximum or resulted from an upward

departure from the guidelines range established at sentencing. Plea Agr. ¶ 7 (no. 1:17-cr-10105,

ECF No. 244).1 Lopez also waived his right to bring a collateral challenge to his sentence under

§ 2255. Id. For its part, the United States agreed to dismiss the remaining counts and “recommend

that the defendant receive a full reduction for acceptance of responsibility.” Id. ¶ 6. The parties

agreed to recommend to the Court that “the amount of relevant conduct for which the defendant

should be held accountable is more than 50 grams of actual methamphetamine.” Id. The plea

agreement nevertheless acknowledged that the parties’ stipulation on this point was only a

recommendation and that the Court would determine “the amount of relevant conduct for which

the defendant should be held accountable.” Id.

The Court held a hearing on February 25, 2019, to determine whether to accept Lopez’s

change of plea. During the plea hearing, the undersigned conducted a Rule 11 colloquy, making

certain that Lopez understood the charge to which he was pleading guilty, the minimum and

maximum penalties, the rights he was giving up by pleading guilty, and the procedure for the

sentencing phase. Change of Plea Hr’g Tr. (no. 1:17-cr-10105, ECF No. 365). Lopez confirmed

1 The plea agreement’s reference to the “guidelines” refers to the United States Sentencing

Commission Guidelines Manual (the “Guidelines” or “U.S.S.G.”).

that he was satisfied with his attorney’s representation and that his attorney had thoroughly

reviewed the plea agreement with him and gone over the possible sentences for Lopez’s offense.

Lopez represented to the Court that he had entered into the plea agreement freely and voluntarily

following review of the document with his attorney and that he was in fact guilty of the crime to

which he was pleading guilty. After the Assistant United States Attorney recited the factual basis

for the plea and Lopez admitted the facts, the Court found that the charge against Lopez in Count

1 had a basis in fact. Having satisfied itself that Lopez understood his rights and voluntarily agreed

to waive them as part of his agreement with the government, the Court accepted Lopez’s guilty

plea as to Count 1.

In anticipation of sentencing, the United States Probation Office prepared the presentence

report (the “PSR”) (no. 1:17-cr-10105, ECF No. 315).2 The PSR recommended a base offense

level of 38 under U.S.S.G. § 2D1.1(c)(1) because Lopez’s offense involved the distribution of

more than 90,000 kilograms in converted drug weight of controlled substances. Id. ¶ 40. More

specifically, Lopez’s offense involved 133.0 kilograms of “ice” (converted drug weight of 2.660

million kg), 269.25 grams of fentanyl (converted drug weight of 673.12 kg), 44.67 grams of

hydrocodone (actual) (converted drug weight of 299.29 kg), and 6.49 kilograms of marihuana

(converted drug weight 6.49 kg) for a total of 2,660,978.90 kg of converted drug weight. The PSR

further recommended the addition of two points because the offense involved the importation of

amphetamine or methamphetamine, two points for maintaining a premises for the purpose of

distributing a controlled substance, and four points because Lopez was an organizer or leader of

five or more persons in the drug trafficking conspiracy. The PSR calculated a total adjusted

2 The probation office produced a first and second addendum to the PSR after it was issued.

(See no. 1:17-cr-10105, ECF No 315-2 & 329.) References herein to the PSR include the addenda

unless otherwise specified.

offense level of 46, which the Guidelines capped at 43. Id. at ¶ 85.3 Based on an offense level of

43 and criminal history category of VI, the Guidelines range for Lopez’s offense was a 10-year

minimum up to life in prison.

The Court held a sentencing hearing July 9, 2019. Counsel for Lopez raised two objections

to the PSR’s offense level calculations and the application of the Guidelines’ drug house

enhancement as well as the enhancement for being a leader or organizer. The Court heard the

parties’ arguments on these points and received testimony from DEA Agent John Krieger. Based

on the proof introduced through Agent Krieger, the Court concluded that both enhancements

should apply under the facts of Lopez’s case. After hearing additional argument from counsel and

allocution from Lopez, the Court analyzed the sentencing factors set forth in 18 U.S.C. § 3553(a).4

The Court sentenced Lopez to life in prison and five years of supervised release. Judgment (no.

1:17-cr-10105, ECF No. 334) was entered the same day. Lopez appealed the judgment to the

3 In the second addendum, the Probation Officer noted that Lopez had argued for a three-

level reduction for acceptance of responsibility, a reduction that would take his offense level from

46 to the Guidelines cap of 43. The Court granted the three-level reduction at sentencing and

calculated Lopez’s adjusted offense level as 43.

4 Pursuant to 18 U.S.C. § 3553(a), a court must reach an appropriate sentence by

considering “the kinds of sentence and the sentencing range” under the advisory Guidelines and

“policy statements,” as well as the following additional factors: “the nature and circumstances of

the offense and the history and characteristics of the defendant; ... the need for the sentence

imposed . . . to reflect the seriousness of the offense, to promote respect for the law, and to provide

just punishment for the offense[,] . . . to afford adequate deterrence to criminal conduct[,] . . . to

protect the public from further crimes of the defendant[,] and . . . to provide the defendant with

needed educational or vocational training, medical care, or other correctional treatment in the most

effective manner; . . . the kinds of sentences available; . . . the need to avoid unwarranted sentence

disparities among defendants with similar records who have been found guilty of similar conduct;

and . . . the need to provide restitution to any victims of the offense.” 18 U.S.C. § 3553(a).

United States Court of Appeals for the Sixth Circuit. The Sixth Circuit dismissed the appeal due

to the appeal waiver provision in Lopez’s plea agreement.

Lopez raises six different grounds for relief as part of his § 2255 Motion. Ground 1 alleges

that Lopez’s trial counsel was ineffective for failing to argue Lopez’s mental competence prior to

Lopez’s decision to change his plea. According to Lopez, he was taking Wellbutrin at the time

and experienced side effects like delusions and an inability to concentrate. Lopez describes his

trial lawyer Mr. Holton as a “puppetmaster” who coerced Lopez as a “puppet” into changing his

plea. Lopez further alleges that Mr. Holton coerced Lopez’s daughters to convince Lopez to take

the plea bargain. Lopez also argues that the Court had an independent obligation to question

Lopez’s competence based on his presentation in court and Lopez’s medical history.

Ground 2 is that trial counsel was ineffective by failing to advise Lopez about the effect of

offense conduct and enhancements and Lopez’s relevant conduct on the adjusted offense level

calculations. Lopez claims that Mr. Holton never informed him the Court would determine the

amount of drugs attributable to him or that the Court would make its finding under a preponderance

of the evidence standard instead of proof beyond a reasonable doubt. Lopez also faults the Court

for not explaining the two burdens of proof, beyond a reasonable doubt and a preponderance of

the evidence, at the plea hearing.

Ground 3 is that trial counsel failed to advise Lopez about the § 2255 waiver contained in

the plea agreement. In Lopez’s view, the Court should have alerted Lopez to Mr. Holton’s conflict

of interest in agreeing to the waiver, which included a waiver of any claim concerning counsel’s

ineffectiveness.

Ground 4 is that trial counsel failed to advise Lopez that $16,290 in U.S. currency would

be subject to forfeiture. Lopez maintained throughout the proceedings that the $16,290 seized as

part of the investigation represented the proceeds of a settlement Lopez had received for injuries

sustained during a previous period of incarceration. Relatedly, Ground 5 is that the United States

breached the plea agreement by seizing the $16,290 in cash.

Ground 6 concerns Lopez’s correct criminal history category. According to Lopez, the

second addendum to his PSR stated that Lopez had a criminal history category of IV while the

original PSR stated his category was VI. Lopez simply questions which statement is correct.

Lopez has submitted exhibits with his § 2255 Motion. Exhibit 1 consists of two affidavits,

the first signed by Kari L. Lopez and the second by Kassandra Lopez. Both affidavits contain

largely the same facts. Kari L. Lopez and Kassandra Lopez are Lopez’s daughters. According to

their affidavits, Mr. Holton contacted the affiants in January or February 2019 and urged them to

convince their father to accept a plea agreement rather than go to trial. Mr. Holton explained to

Lopez’s daughters that under the terms of the plea agreement, Lopez faced a sentence of 17 to 21

years. If convicted at trial, Lopez could get a life sentence. Mr. Holton told the affiants after

Lopez received a life sentence that he would appeal the sentence and that Lopez would still get the

17 to 21 years. Exhibit 2 is a copy of the position paper filed by Mr. Holton on Lopez’s behalf

prior to the sentencing hearing in his criminal case. Finally, Exhibit 3 is the U.S. Probation

Officer’s second addendum to the PSR.

The government has responded in opposition to Lopez’s § 2255 Motion. As part of its

Answer (ECF No. 17) to the § 2255 Motion, the government has submitted a declaration from

John Holton. Mr. Holton states that throughout his representation of Lopez, Mr. Holton never had

any concerns about Lopez’s mental state or his understanding of the charges and proceedings

against him. Mr. Holton admits that he communicated with Lopez’s daughters about their father’s

case but denies that he ever coerced them or Lopez to accept the plea agreement. Mr. Holton

affirms that he discussed the case in some depth with Lopez and explained to him the Guidelines,

the application of possible enhancements, and the concept of relevant conduct. Mr. Holton also

states that he went over the plea agreement with Lopez during three different attorney-client

meetings and spent several hours discussing the terms of the agreement, including the appeal

waiver.

The Court also granted Lopez’s request to expand the record. The specific exhibit to be

included in the record was a visitor log for the West Tennessee Detention Facility (ECF No. 25-1)

where Lopez was housed during his pretrial detention. Lopez argues that the visitor log establishes

the number of times Mr. Holton met with Lopez at the facility to discuss his case. As part of its

ruling on Lopez’s request to make the log part of the record, the Court also granted the

government’s request to include a supplemental declaration from Mr. Holton (ECF No. 27-1). Mr.

Holton’s supplemental declaration states that Mr. Holton made 19 different visits to the facility to

meet with Lopez about his case.

STANDARD OF REVIEW

A petitioner seeking § 2255 relief “must allege one of three bases as a threshold standard:

(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3)

an error of fact or law that was so fundamental as to render the entire proceeding invalid.” Gabrion

v. United States, 43 F.4th 569, 578 (6th Cir. 2022) (citation omitted). A movant has the burden of

proving that he is entitled to relief by a preponderance of the evidence. United States v. Brown,

957 F.3d 679, 690 (6th Cir. 2020). “[C]onclusory allegations alone, without supporting factual

averments, are insufficient to state a valid claim under § 2255.” Gabrion, 43 F.4th at 578 (citation

omitted)). A movant who entered a guilty plea must show an error of constitutional magnitude

that had a substantial and injurious effect or influence on the proceedings. Griffin v. United States,

330 F.3d 733, 736 (6th Cir. 2003) (citing Brecht v. Abrahamson, 507 U.S. 619, 637 (2003)).

The Sixth Amendment guarantees criminal defendants “the right . . . to have the Assistance

of Counsel for [their] defence.” U.S. Const. am. VI. The right to counsel includes “the right to

the effective assistance of counsel.” Garza v. Idaho, 586 U.S. 232, 237 (2019) (quoting Strickland

v. Washington, 466 U.S. 668, 686 (1984)). The Supreme Court has described the right to effective

assistance of counsel as “a bedrock principle” and the “foundation for our adversary system” of

criminal justice. Martinez v. Ryan, 566 U.S. 1, 12 (2012). “[T]he Sixth Amendment’s requirement

that defendants receive ‘the effective assistance of competent counsel’ extends to all critical stages

of a criminal proceeding.” Gilbert v. United States, 64 F.4th 763, 770 (6th Cir. 2023) (quoting

Byrd v. Skipper, 940 F.3d 248, 255 (6th Cir. 2019)). A claim that an attorney’s ineffective

assistance has deprived a criminal defendant of his Sixth Amendment right to counsel is cognizable

under § 2255. Gilbert, 64 F.4th at 770 (citing Massaro v. United States, 538 U.S. 500, 504, 508–

09 (2003)). A court may only grant relief under § 2255 if the petitioner demonstrates “a

fundamental defect which inherently results in a complete miscarriage of justice.” Griffin, 330

F.3d at 736 (6th Cir. 2003) (quoting Davis v. United States, 417 U.S. 333, 346 (1974)).

In order to carry his burden and show that he was deprived of his right to counsel, Lopez

“must show deficient performance by counsel and resulting prejudice to the defendant.” Id. (citing

Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). First, to demonstrate deficient

performance, Lopez “must identify the acts or omissions of counsel that are alleged not to have

been the result of reasonable professional judgment.” Strickland, 466 at 690. “The benchmark for

judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper

functioning of the adversarial process that the trial cannot be relied on as having produced a just

result.” Id. at 686. A court considering a claim of ineffective assistance must apply “a strong

presumption” that the attorney’s representation was “within the wide range of reasonable

professional assistance; that is, the defendant must overcome the presumption that, under the

circumstances, the challenged action might be considered sound trial strategy.” Id. at 689 (internal

quotation marks omitted).

Then, to demonstrate prejudice, a petitioner must establish “a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

Id. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. “It is not enough ‘to show that the errors had some conceivable effect on the

outcome of the proceeding.’” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland,

466 U.S. at 693) (citations omitted). Instead, “[c]ounsel’s errors must be ‘so serious as to deprive

the defendant of a fair trial, a trial whose result is reliable.’ ” Id. (quoting Strickland, 466 U.S. at

687). To satisfy the prejudice requirement in the context of a guilty plea, the defendant must show

a “reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would

have insisted on going to trial.” Kimbrough v. United States, 71 F.4th 468, 473 (6th Cir. 2023)

(quoting Hill v. Lockhart, 474 U.S. 52, 58–59 (1985)).

Section 2255 indicates: “Unless the motion and the files and records of the case

conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing

thereon[.]” 28 U.S.C. § 2255(b); see also Rules Governing § 2255 Proceedings, Rule 4(b). The

Sixth Circuit has “interpreted this statutory language (and the accompanying procedural rules) to

require a hearing only if a prisoner meets a standard analogous to the summary-judgment test by

creating a legitimate dispute over a legally important fact.” Wallace v. United States, 43 F.4th

595, 606–07 (6th Cir. 2022) (citations omitted). “[N]o hearing is required,” however, “if the

petitioner’s allegations cannot be accepted as true because they are contradicted by the record,

inherently incredible, or conclusions rather than statements of fact.” Monea v. United States, 914

F.3d 414, 422 (6th Cir. 2019) (quoting Valentine v. United States, 488 F.3d 325, 333 (6th Cir.

2007)).

ANALYSIS

I. Ground 1 – Lopez’s Competence to Understand the Proceedings

The first issue raised in Lopez’s § 2255 Motion is whether trial counsel was ineffective by

failing to raise Lopez’s mental competency prior to Lopez reaching an agreement with the

government to resolve the case through plea negotiations and changing his plea to the charge in

Count 1. A defendant meets the constitutional standard for competency if he has: (1) the sufficient

present ability to consult with his counsel with a reasonable degree of rational understanding, and

(2) a rational as well as factual understanding of the criminal proceedings against him. Indiana v.

Edwards, 544 U.S. 164, 170 (2008); Dusky v. United States, 362 U.S. 402, 402 (1960). A

defendant can enter a guilty plea only if the plea is made knowingly, intelligently, and voluntarily.

Boykin v. Alabama, 395 U.S. 238, 241 (1969). Otherwise, “a defendant may not be put to trial . .

. .” Ryan v. Gonzales, 133 S. Ct. 696, 703 (2013). The Sixth Circuit has noted that “the bar for

incompetency” is “high.” United States v. Miller, 531 F.3d 340, 350 (6th Cir. 2008). The

determination of a defendant’s competence is a factual finding for the Court. United States v.

Branham, 97 F.3d 835, 855 (6th Cir. 1996).

The Court holds that Lopez has not carried his burden to show that Mr. Holton was

ineffective because he failed to raise Lopez’s competence as a pretrial issue. Lopez has not cited

any evidence that he was not competent to enter into a plea agreement with the United States.

Lopez just asserts that at the time of his plea, he was receiving mental health treatment and taking

a prescribed medication. The fact that Lopez suffers from a number of physical health issues and

has been diagnosed with post-traumatic stress disorder was undisputed in this case. Lopez asserts

that at the time he agreed to plead guilty to the charge in Count 1, he was taking the medication

Wellbutrin as part of his mental health treatment, a fact counsel mentioned at sentencing.

Sentencing Tr. 58:2-3 (ECF No. 371) (“So he’s taken Wellbutrin, which is an antidepressant,

which he’s taking for his PTSD.”). Even so, a defendant is not deemed incompetent merely

because he has a mental illness or takes a medication. United States v. Dubrule, 822 F.3d 866,

875-76 (6th Cir. 2016); Miller, 531 F.3d at 349 (citing United States v. Davis, 93 F.3d 1286, 1290

(6th Cir. 1996) (“Although there is some suggestion in the record that the defendant is currently

under psychiatric care, even if she were mentally ill, it does not follow that because a person is

mentally ill he is not competent to stand trial.”).

Lopez’s burden is to show that he lacked the “sufficient present ability to consult with his

lawyer with a reasonable degree of rational understanding” or “a rational as well as factual

understanding of the proceedings against him” at the time of his change of plea in February 2019.

Miller, 531 F.3d at 348 (quoting Drope v. Missouri, 420 U.S. 162, 172 (1975)). Lopez alleges that

he exhibited confusion during the plea colloquy and suggests his confusion was a side effect of the

medication he was taking at the time. Lopez cites two different points during the hearing when he

posed questions about terms of the plea bargain as evidence of his confused mental state. Lopez

argues that his questions show that he did not have a clear understanding of the agreement and

lacked the competence to understand the provisions of the agreement.

But the record of the change-of-plea hearing flatly contradicts Lopez’s contention about a

state of confusion or an inability to understand the nature and consequences of the plea bargain.

Federal Rule of Criminal Procedure 11 governs plea bargaining and requires a district court “before

the court accepts a plea of guilty . . . [to] address the defendant personally in open court” and as

part of the address or colloquy, to “inform the defendant of, and determine that the defendant

understands” his trial-related rights and the consequences of waiving them by entering into a guilty

plea. Fed. R. Crim. P. 11(b)(2). The Court also has a duty to “determine that the plea is voluntary

and did not result from force, threats, or promises (other than promises in a plea agreement)” and

“that there is a factual basis for the plea.” Fed. R. Crim. P. 11(b)(2) & (3).

As part of the plea colloquy required by Rule 11(b), the Court asked Lopez a series of

questions about his medications and questioned Lopez about his mental health. At the end of that

line of questioning, the following exchange between the Court and Lopez took place:

THE COURT: Mr. Lopez, the reason I’m asking you all these questions is

it’s important for me to be sure that you understand what you’re doing here today

and what we call the consequences of what you’re doing. Do you believe that you

do understand?

THE DEFENDANT: Yes, sir.

Plea Hr’g Tr. 10:4-10 (no. 1:17-cr-10105, ECF No. 365). “Solemn declarations in open court carry

a strong presumption of verity,” and even though “the barrier of the plea or sentencing proceeding

record, although imposing, is not invariably insurmountable,” overcoming that presumption must

nevertheless require considerable support in the record. Blackledge v. Allison, 431 U.S. 63, 74

(1977). This typically means a defendant’s response in open court and as part of a Rule 11 plea

colloquy “must prevail over the assertions in [a] § 2255 motion.” Roman v. United States, 2021

WL 8055773, at *2 (6th Cir. 2021) (citing Ramos v. Rogers, 170 F.3d 560, 566 (6th Cir. 1999)).

Lopez’s sworn response during the plea colloquy that he had a present understanding of his rights

and the consequences of his guilty plea overrides his claim in his § 2255 Motion that he was

confused during the hearing.

Mr. Holton’s declaration (ECF No. 17-1) adds his own observation that “at all times Mr.

Lopez was engaged and participated fully” in discussions of his case with Mr. Holton and that

“[a]t no time did [Mr. Holton] ever have any concerns that [Lopez] was unable to understand the

nature and consequences of the proceedings against him or to assist properly in his defense.”

Holton Decl. ¶ 7 (ECF No. 17-1). On this record, Lopez has not shown that he was not competent

at the time of his plea hearing.

True, Lopez raised questions during the colloquy about two specific provisions of the plea

agreement. When the Court questioned Lopez about the plea agreement’s forfeiture provision,

Lopez asked to be heard on that point. Lopez explained to the Court the source of a sum of

currency seized during the investigation and stated his belief that the money was not subject to

forfeiture. The Court discusses the forfeiture provision of the plea agreement and the disposition

of Lopez’s currency in more detail below. Later in the plea colloquy, as part of the discussion of

the plea agreement’s appeals waiver, Lopez paused and stated to the Court that he did not

understand he was waiving his right to appeal. Plea Hr’g Tr. 29:1-24 (no. 1:17-cr-10105, ECF No.

365). After a short attorney-client conference, Lopez stated to the Court that although he was

initially confused by the Court’s question, he had in fact “waived an appeal.” Id. at 30:4-21.

Instead of showing that Lopez was not competent to understand the proceedings, all of this

underscores the fact that Lopez had the capacity to understand the forfeiture and appeal waivers

contained in the plea agreement. Lopez articulated his own theory of the forfeiture issue in his

colloquy with the Court and informed the Court he was already pursuing an administrative remedy

to recover his property. Lopez’s presentation was comprehensible and easy to follow. Lopez

demonstrated an understanding of the forfeiture process and his right to request to have the

property returned to him. Lopez also balked at the appeal waiver but had a clear understanding of

it after a short discussion with Mr. Holton. The fact that Lopez raised this question at all, conferred

with counsel about the appeal waiver, and then explained to the Court that he had misunderstood

the Court’s question about the waiver actually tends to show that Lopez was competent. Lopez

understood the significance of the appeal waiver, had the capacity to raise the question about the

waiver, and then resolved the question by discussing it further with his attorney. The Court

concludes that Lopez has not carried his burden to show that he suffered from any mental disability

that prevented him from consulting with Mr. Holton “with a reasonable degree of rational

understanding” or that he lacked “a rational as well as factual understanding of the proceedings

against him.” Miller, 531 F.3d at 348.

The same reasoning applies to Lopez’s claim that Mr. Holton acted as a “puppetmaster”

and took advantage of Lopez’s mental state to coerce him into accepting the plea bargain. Lopez

supposes that his incompetent mental state allowed Mr. Holton to overcome his will and pressure

Lopez (directly and through his daughters) to take the plea. In his reply brief, Lopez also asserts

that Mr. Holton prepped him for the change-of-plea hearing and directed him to respond in the

affirmative to all of the Court’s questions.

Lopez’s after-the-fact explanations contradict Lopez’s statements under oath during the

plea colloquy. Rule 11(b)(2) requires a court to question a defendant “personally in open court”

and satisfy itself the defendant’s guilty plea “is voluntary” and not the product of “force, threats,

or promises.” Fed. R. Crim. P. 11(b)(2). Lopez affirmed under oath that he had signed the plea

agreement (Plea Hr’g Tr. 17:14-23), that he had gone over the agreement with Mr. Holton prior to

signing it (id. at 17:24-18:2), and that he understood the terms of the agreement (id. at 18:3-6).

After the Assistant United States Attorney read the plea agreement aloud, Lopez stated that the

terms and conditions read aloud were the terms and conditions as he understood them. Id. at 22:8-

14.

The Court then reviewed several provisions of the plea agreement in more detail with

Lopez. At the end of this part of the colloquy, the following exchange took place:

THE COURT: Did you sign the plea agreement freely and voluntarily?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Did anyone pressure you in any way –

THE DEFENDANT: No, sir. No, sir.

THE COURT: -- to try to get you to sign the agreement –

THE DEFENDANT: No, sir. I signed it on my own.

Id. at 31:19:32:3. Lopez’s statements that he signed the agreement of his own volition trumps the

contradictory allegations of his § 2255 Motion. Therefore, this aspect of Ground 1 is without

merit.

This just leaves Lopez’s related argument that the Court itself should have raised Lopez’s

competence sua sponte. The Court holds that Lopez has not carried his burden to prove such a

claim. Under 18 U.S.C. § 4241, “the district court has not only the prerogative, but the duty, to

inquire into a defendant’s competency whenever there is ‘reasonable cause to believe’ that the

defendant is incompetent to stand trial.” Dubrule, 822 F.3d at 879 (quoting United States v. White,

887 F.2d 705, 709 (6th Cir. 1989)). “[E]vidence of a defendant’s irrational behavior, his demeanor

[in court], and any prior medical opinion on competence to stand trial are all relevant” to the

Court’s inquiry. Drope, 420 U.S. at 180; see also Filiaggi v. Bagley, 445 F.3d 851, 858 (6th Cir.

2006). The Supreme Court has aptly summarized the nature of the Court’s task:

There are, of course, no fixed or immutable signs which invariably indicate the need

for further inquiry to determine fitness to proceed; the question is often a difficult

one in which a wide range of manifestations and subtle nuances are implicated.

That they are difficult to evaluate is suggested by the varying opinions trained

psychiatrists can entertain on the same facts.

Drope, 420 U.S. at 180. In making its fact-intensive determination, the Court’s proper focus

remains on the defendant’s present ability to stand trial and participate in his own defense. United

States v. Gignac, 301 F. App’x 471, 475 (6th Cir. 2008) (citing Dusky, 362 U.S. at 402).

For the same reasons Lopez has not proven Mr. Holton was ineffective by failing to raise

Lopez’s competence, Lopez has not carried his burden to show that the Court should have

questioned his competence sua sponte. The undersigned presided over the entirety of the criminal

proceedings against Lopez. At no time during any appearance before the undersigned did Lopez

exhibit any signs of irrational behavior or demeanor and certainly nothing of the sort to prompt the

Court to question Lopez’s competency. Blanton v. United States, 94 F.3d 227, 235 (6th Cir. 1996).

With specific reference to the change-of-plea hearing, the Court conducted a full Rule 11 colloquy

with Lopez to ascertain whether he was experiencing any physical or mental health impairments

which could have impacted his ability to understand the consequences of his decision to accept the

plea agreement. Lopez’s responses to each of the Court’s questions satisfied the Court that Lopez

was acting freely and intelligently. Id. at 38:3-5 (“It appears to the Court that Mr. Lopez

understands his rights and that he has knowingly waived those rights.”).

One final point. Based on Lopez’s representations during the change-of-plea hearing,

Lopez is not entitled to an evidentiary hearing on this claim about his mental competency. Where

a defendant uses a § 2255 Motion to refute statements previously made under oath and in open

court, “the truth of sworn statements made during a Rule 11 colloquy is conclusively established,

and a district court should, without holding an evidentiary hearing, dismiss any § 2255 motion that

necessarily relies on allegations that contradict the sworn statements.” Posey v. United States, No.

3:20-cv-00121, 2020 WL 2129235, at *9 (M.D. Tenn. May 5, 2020) (quoting United States v.

Lemaster, 403 F.3d 216, 221-22 (4th Cir. 2005)). The Court concludes that Lopez has failed to

carry his burden as to Ground 1. Therefore, Lopez’s § 2255 Motion is DENIED as to this issue.

II. Ground 2 – Counsel’s Failure to Advise Lopez Regarding Offense Conduct and the

Court’s Role in Determining Relevant Conduct

As his second ground for relief, Lopez claims that Mr. Holton was ineffective by failing to

advise Lopez about two aspects of his potential sentence: the effect of unspecified offense conduct,

or enhancements, on Lopez’s adjusted offense level; and the role of the Court in determining

relevant conduct at sentencing, i.e. the drug quantity attributable to Lopez. According to Lopez,

Mr. Holton never explained that the Court would decide the quantity of drugs attributed to Lopez

under a preponderance of the evidence standard. Lopez also faults the Court for failing to explain

the difference between the preponderance standard and the beyond-a-reasonable-doubt standard

during the plea colloquy.

“[W]hen the Government chooses to enter into plea negotiations, the Constitution requires

that defendants receive effective assistance in navigating that crucial process.” Rodriguez-Penton

v. United States, 905 F.3d 481, 489 (6th Cir. 2018) (citing Lafler v. Cooper, 566 U.S. 156, 168

(2012)). Effective assistance includes “accurate advice regarding sentence exposure.” Id.

(citations omitted). “A criminal defendant has a right to expect at least that his attorney will . . .

explain the sentencing exposure the defendant will face as a consequence of exercising each of the

options available.” Smith v. United States, 348 F.3d 545, 553 (6th Cir. 2003). Defense counsel

cannot sufficiently explain sentencing exposure to a defendant without “completely exploring the

ranges of penalties under likely guideline scoring scenarios, given the information available to the

defendant and his lawyer at the time.” Id.

The Court holds that Lopez has not shown that Mr. Holton was ineffective in advising him

during plea negotiations or why any supposed deficiency in counsel’s representation caused Lopez

prejudice.

A. Offense Conduct or Enhancements

First, Lopez has not spelled out exactly what he means by “offense conduct” or

“enhancements.” Lopez only argues that the fact that Mr. Holton filed a position paper objecting

to the PSR’s application of certain Guidelines is somehow evidence that Mr. Holton “was

surprised” by the fact that those Guidelines could apply in Lopez’s case. The PSR recommended

and the Court applied two different Guidelines in arriving at Lopez’s sentence, both of which had

the effect of increasing his offense level: a two-point increase for maintaining a premises for the

purpose of distributing a controlled substance and a four-point increase because Lopez was an

organizer or leader of five or more persons in the drug trafficking conspiracy.

Under U.S.S.G. § 2D1.1(b)(12), a two-level “drug house” enhancement applies when a

defendant maintains a premises for the purpose of manufacturing or distributing a controlled

substance. The Guidelines’ commentary explains that “[m]anufacturing or distributing a

controlled substance need not be the sole purpose for which the premises was maintained, but must

be one of the defendant’s primary or principal uses for the premises, rather than one of the

defendant’s incidental or collateral uses for the premises.” United States v. Terry, 83 F.4th 1039,

1042 (6th Cir. 2023) (citing U.S.S.G. § 2D1.1 cmt. n.17). The Sixth Circuit has described the

policy rationale of the drug house enhancement this way: “Turning a neighborhood into a

recognizable drug business area by repeated sales and transactions corrupts a neighborhood in a

way that warrants a steeper penalty.” Id. at 1043.

Under U.S.S.G. § 3B1.1(a), a defendant’s offense level is increased by four levels “[i]f the

defendant was an organizer or leader of a criminal activity that involved five or more participants

or was otherwise extensive.” U.S.S.G. § 3B1.1(a). A defendant qualifies for this enhancement if

the defendant was “the organizer, leader, manager, or supervisor of one or more other participants.”

U.S.S.G. § 3B1.1 cmt. n.2. The enhancement does not apply, however, “where the defendant has

‘merely exercised control over the property, assets or activities of the enterprise.’” United States

v. Sexton, 894 F.3d 787, 795 (6th Cir. 2018) (quoting United States v. Swanberg, 370 F.3d 622,

629 (6th Cir. 2004)).

Nothing in Lopez’s § 2255 Motion states that Mr. Holton failed to discuss the possibility

that these enhancements might apply in Lopez’s case. Lopez just argues that the PSR caught Mr.

Holton by surprise. Lopez’s argument on this point contradicts his representations to the Court

during the plea colloquy. As the Court has already noted, Lopez told the Court during the colloquy

that Mr. Holton had reviewed his case with him fully and completely, that Lopez was satisfied

with Mr. Holton’s representation, and that Mr. Holton had done a good job explaining the case to

him. Plea Hr’g Tr. 10:11-20 (no. 1:17-cr-10105, ECF No. 365). Lopez also affirmed his

understanding that a PSR would be completed. The Court explained to Lopez that the PSR would

include analysis of the Guidelines applicable to Lopez’s case and that under the Guidelines there

would be a range of sentences from a low end to a high end. Id. at 16:10-21.

Perhaps more important, Lopez admitted during the plea colloquy that he understood he

was facing a maximum sentence of life on the charge to which he was pleading guilty.5 The

following exchange took place.

5 Lopez’s argument that Mr. Holton told him he was pleading to a specific sentencing range

of 17 to 21 years also runs counter to Lopez’s sworn statements to the Court. As a result, Lopez

THE COURT: All right. Now you said you understood when Mr. Kitchen

went over the maximum penalty range. Am I correct?

THE DEFENDANT: As to life sentence?

THE COURT: Sir?

THE DEFENDANT: Life? Yes, sir.

THE COURT: Well, yeah. Of course, that’s the maximum. And that’s why

I want to talk to you about. Maximum means that’s the most. Okay? That’s the most

you could receive.

Plea Hr’g Tr. 15:9-18. Lopez himself volunteered to the Court that he understood the maximum

sentence in his case was a life sentence. Lopez went on to state his understanding that the Court

would make the ultimate decision of what sentence, up to and including the maximum of life,

would be appropriate in his case. Id. at 16:19-21, 17:4-6. As part of the colloquy concerning the

appeal waiver, Lopez told the Court he understood that he was waiving his right to appeal the

sentence, even if he was “hoping for a certain sentence” and the Court imposed “a harder

sentence.” Id. at 30:11-14. Based on Lopez’s responses during the plea colloquy, the Court

concludes that Lopez cannot now contradict the record and assert that Mr. Holton failed to discuss

the sentencing process and the possible sentence of life, which would have included the application

of enhancements, he might receive prior to Lopez deciding to plead guilty to Count 1. Cadavid-

Yepes v. United States, 635 F. App’x 291, 299–300 (6th Cir. 2016) (“[E]ven if counsel gives a

defendant erroneous information, a defendant is not entitled to relief if the misinformation is

directly refuted on the record by the district judge during a plea colloquy.”).

B. Drug Quantity

cannot base his § 2255 Motion on statements Mr. Holton allegedly made about a promised sentence

of 17 to 21 years.

Lopez next alleges that counsel failed to advise him fully about the role of the Court in

determining at sentencing the amount of narcotics for which Lopez would be held accountable.

U.S.S.G. § 2D1.1(a) governs the base offense level for drug trafficking crimes and instructs a court

at sentencing to apply “the offense level specified in the Drug Quantity Table” unless other

conditions, which are not relevant here, are met. U.S.S.G. § 2D1.1(a) (2018 ed.). The United

States has the burden to “prove the drug quantity attributable to a defendant by a preponderance

of the evidence” at sentencing. United States v. Reed, 72 F.4th 174, 193–94 (6th Cir. 2023)

(Readler, J., concurring) (citing United States v. McReynolds, 964 F.3d 555, 563 (6th Cir. 2020)).

A court is permitted to make “a reasonable estimate, based on physical or testimonial evidence.”

Id. at 194 (citing United States v. Tisdale, 980 F.3d 1089, 1096 (6th Cir. 2020)). And where a

defendant like Lopez is guilty of conspiracy to distribute, “the quantity may sweep in more drugs

than what the defendants personally handled.” Id. (citing U.S.S.G. § 1B1.3 & cmt.3(B)).

Just as the record contradicts Lopez’s claim that counsel did not advise him about offense

conduct or enhancements, the plea colloquy also contradicts this claim. The plea agreement stated

that “any issues not specifically addressed by this plea agreement shall be resolved by the Court

in accordance with applicable statutes, guidelines, rules and case law.” Plea Agr. ¶ 1 (no. 1:17-cr-

10105, ECF No. 244). The broad scope of this provision easily includes determinations about drug

quantities attributable to Lopez and his co-conspirators. The agreement went on to include a

stipulation whereby the parties agreed to recommend to the Court that Lopez should be held

accountable for more than 50 grams of actual methamphetamine. The stipulation made explicit

what the previous paragraph had already implied and specified that “determining the amount of

relevant conduct for which the defendant should be held accountable is a matter to be determined

by the district court.” Id. ¶ 4. The Assistant United States Attorney read the stipulation at the plea

hearing, and Lopez confirmed his understanding that the stipulation was part of the agreement.

The Court also specifically addressed this stipulation with Lopez, and Lopez stated to the Court

under oath that he understood it. Plea Hr’g Tr. 27:18-24 (“THE COURT: Paragraph 4, on page 2,

the top of page 2, states that you agree that the amount of methamphetamine that you’re going to

be held responsible for is more than 50 grams of actual methamphetamine. Was that your

understanding? THE DEFENDANT: Yes, Your Honor. Yes, sir.”).

The Assistant United States Attorney also reviewed the factual basis for the charge against

Lopez in Count 1 and stated that the government could prove beyond a reasonable doubt that Lopez

was responsible for 48.5 kilograms of methamphetamine alone. Id. at 35:20-23. Lopez admitted

the truth of the facts alleged by the government, including the quantity of drugs attributable to him.

Id. at 36:7-37:4. Lopez cannot now use his § 2255 Motion to contradict his prior statements that

he understood these provisions of the plea agreement and admitted the truth of the facts alleged by

the government as to Count 1, including the fact that Lopez was responsible for trafficking over

48 kilograms of methamphetamine. Therefore, Lopez has not shown why Mr. Holton’s

representation was objectively unreasonable.

Lopez goes somewhat further and argues that Mr. Holton was ineffective because he did

not directly explain to Lopez the difference between the preponderance standard and the beyond-

a-reasonable-doubt burden of proof or the fact that the Court could find a drug quantity by a

preponderance at sentencing. Even if Lopez could prove these claims, Lopez cannot prove why

any failure on Mr. Holton’s part to advise Lopez about the drug quantity or the Court’s role in

determining the quantity under a preponderance standard resulted in prejudice.

At sentencing the Court adopted the PSR’s conclusion that more than 90,000 kilograms in

converted drug weight, based on the quantities of several different drugs involved in Lopez’s

offense, was attributable to Lopez and his co-conspirators. A drug quantity of 90,000 kilograms

or more of converted drug weight meant Lopez’s base offense level was 38. See U.S.S.G. §

2D1.1(c)(1) Drug Quantity Table (2018 ed.). Lopez argues that counsel’s failure to explain that

the Court would make this determination and under a preponderance standard prejudiced him. But

Lopez had already admitted the fact at his change-of-plea hearing that his conduct involved more

than 48 kilograms of methamphetamine.

The Drug Quantity Table found in § 2D1.1(c)(1) states that the base offense level for any

drug trafficking offense involving 45 kilograms or more of methamphetamine is 38. Id. In other

words, the government’s contention about Lopez trafficking 48.5 kilograms of meth was, standing

alone, enough to establish Lopez’s base offense level as 38. And this was before the Court ever

made any additional factual findings about the quantities of other drugs attributable to Lopez and

the conspiracy. Under the circumstances, Lopez cannot show that “the result of the proceeding

would have been different,” had Mr. Holton given him more complete counsel on the role of the

Court in finding attributable conduct at sentencing under a preponderance of the evidence.

Strickland, 466 U.S. at 694.

C. Prejudice Arising From Taking the Plea Bargain

Even assuming Mr. Holton failed to advise Lopez about the specific aspect of sentencing

Lopez has raised as Ground 2 in his § 2255 Motion, Lopez must still show that Mr. Holton’s

ineffectiveness resulted in prejudice. As part of this showing, Lopez must prove either that he

would have gone to trial but for counsel’s ineffectiveness or that he would have bargained for a

more favorable plea. In order to prove prejudice in the context of plea negotiations, the defendant

must show “a reasonable probability that, with proper advice, the outcome of those negotiations

would have been different.” Rodriguez-Penton, 905 F.3d at 489–90. A defendant can establish

prejudice by “showing he would have gone to trial but for the bad advice during the plea process”

or that “had he known about the risk of adverse . . . consequences, he would have bargained for a

more favorable plea.” Gilbert, 64 F.4th at 771 (citations omitted).

Showing prejudice with proof he would have gone to trial requires a defendant to satisfy a

two-part test: (1) going to trial “would have been rational” under the circumstances of his case;

and (2) a reasonable likelihood based on “evidence contemporaneous with his plea” that the

defendant would have elected to go to trial. United States v. Singh, 95 F.4th 1028, 1033 (6th Cir.

2024) (citing Lee v. United States, 582 U.S. 357, 370 (2017)) (other citations omitted). This

showing is a “high bar” for a defendant who pleaded guilty and available only in “unusual

circumstances.” Id. at 1033–34 (quoting Lee, 582 U.S. at 368–69).

Showing prejudice with proof he would have bargained for a more favorable plea requires

a defendant to show “based on contemporaneous evidence” the following elements: (1) a

reasonable probability the defendant would have rejected the plea offer, (2) the government would

have made an offer more favorable for the defendant, (3) the defendant would have accepted the

more favorable offer, and (3) the trial court would have accepted the plea bargain. Id. at 1034

(citations omitted). This is also “difficult standard to meet” and one “rarely” successful. Id.

Nothing in the record shows that Lopez could satisfy the high standard and make either

showing to prove his ineffective assistance claim. Lopez has not alleged or even implied that there

is contemporaneous evidence that going to trial “would have been rational” or that he would have

in fact gone to trial. Singh, 95 F.4th at 1033. Furthermore, there is no evidence the government

made more than one plea offer to Lopez or would have considered an offer for a specific sentence.

Fed. R. Crim. P. 11(c)(1)(C) (allowing the government and a defendant to “agree that a specific

sentence or sentencing range is the appropriate disposition of the case, or that a particular provision

of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply”).

For all of these reasons, Lopez has not met his burden to prove that any ineffectiveness on Mr.

Holton’s part prejudiced Lopez during the plea bargaining process. Therefore, Lopez’s § 2255

Motion is DENIED as to this issue.

III. Ground 3 – The Plea Agreement’s § 2255 Waiver

Lopez alleges in Ground 3 that Mr. Holton did not properly advise Lopez about the § 2255

waiver and the fact that Lopez was agreeing to waive any ineffective assistance claim he might

have against his attorney as part of a collateral attack on his sentence. Lopez also alleges that the

Court had a duty to advise him about the waiver. In response to Lopez’s § 2255 Motion, the United

States has stated that it will not ask the Court to enforce the waiver in this case. A criminal

defendant’s agreement to waive his right to file a § 2255 motion is an affirmative defense. Tallent

v. United States, 567 F. App’x 343, 346 (6th Cir. 2014). Unless the government seeks to enforce

the waiver before a district court, the government forfeits the defense. Id. Here, the United States

has asserted in its pleading that the government will not seek to enforce the § 2255 waiver included

in Lopez’s plea agreement. Because the government has agreed to forego this affirmative defense,

the Court holds that Lopez has not proven how the waiver in the plea agreement has caused him

any prejudice. Therefore, the § 2255 Motion is DENIED as to this issue.

IV. Ground 4 and Ground 5 – Forfeiture of Lopez’s $16,290 in U.S. Currency

Next, Lopez alleges in Ground 4 that Mr. Holton failed to advise him that $16,290 in U.S.

currency could be subject to forfeiture as part of the plea agreement and in Ground 5 that the

government improperly seized the $16,290 in cash and thereby breached the plea agreement. Just

as with Lopez’s other claims of ineffective assistance, Lopez must show that any failure on the

part of Mr. Holton resulted in prejudice. Strickland, 466 U.S. at 694. As for the enforceability of

the plea agreement, “Puckett v. United States, 556 U.S. 129, 137, 129 S.Ct. 1423, 173 L.Ed.2d 266

(2009), permits, but does not require, courts to vacate pleas when the government breaches its

agreement.” McCormick v. United States, 72 F.4th 130, 135 (6th Cir. 2023).

The plea agreement contained the following provision regarding forfeiture: “The defendant

agrees to abandon any claim in any civil or administrative forfeiture proceeding as a result of the

conduct to which the defendant is pleading under this agreement, and agrees to forfeit any and all

property seized from the defendant upon arrest.” Plea Agr. ¶ 3 (no. 1:17-cr-10105, ECF No. 244).

During the plea colloquy, the Court addressed this provision with Lopez. At that time Lopez was

involved in administrative proceedings to recover $16,290 in cash. Lopez explained to the Court

that he did not agree to bargain away his right to recover the currency because the money

represented the proceeds of a settlement he had received and was not connected in any way to his

drug trafficking offense. The Court explained to Lopez that the Court could not tell him what the

outcome of the administrative proceedings might be.

The government did, in fact, go on to seek the forfeiture of $16,290 seized as part of the

investigation into Lopez’s criminal activity. On September 28, 2020, the government filed a civil

forfeiture complaint against $16,290 in U.S. currency, case number 1:20-cv-01219-STA-jay.6

After Lopez filed a verified claim to the property, the United States moved to strike the claim based

on the forfeiture provision of the plea agreement in Lopez’s criminal case. The government argued

that Lopez had agreed not to contest the forfeiture of any property traceable to his criminal activity.

Although the Court granted the government’s motion to strike, Lopez appealed, and the Sixth

6 Lopez also filed a motion for the return of his property (no. 1:17-cr-10105, ECF No. 456)

pursuant to Federal Rule of Criminal Procedure 41(g). The Court denied the request for the return

of the cash based on the fact that the government had initiated civil forfeiture proceedings. Order

Denying Def.’s Mot. for Return Property, Oct. 6, 2020 (ECF No. 456).

Circuit reversed and remanded. The Court of Appeals concluded that Lopez had not knowingly

and voluntarily waived his right to claim the specific property in a forfeiture proceeding. See

United States v. $16,290.00 in United States Currency, No. 21-6100 (6th Cir. Oct. 26, 2022).

On remand, the Court appointed counsel to represent Lopez in the forfeiture proceedings,

and the United States ultimately moved to voluntarily dismiss the case without prejudice. The

Court granted the request for voluntary dismissal. Upon entry of judgment in the civil forfeiture

action, the Department of the Treasury caused a check to issue to Lopez in the amount of

$18,387.34, representing his $16,290.00 plus $2,097.34 in accrued interest. The Clerk of Court

received a confirmation of the transfer of the check to Lopez’s trust account at the United States

Penitentiary on May 16, 2024.

In light of the fact that Lopez has now received his property with accrued interest, any

claim raised in his § 2255 Motion about Lopez being deprived of his property as a result of

counsel’s ineffectiveness or the government’s alleged breach of the plea agreement no longer

presents a live controversy over the funds themselves. Gilbert, 64 F.4th at 769 (holding that an

issue raised in a § 2255 motion may become moot if the motion “no longer presents a case or

controversy within the meaning of Article III, § 2 of the Constitution”). Even if Lopez could prove

that Mr. Holton did not properly advise him about the forfeiture provision in the plea agreement

(Ground 4) or that the government breached the plea agreement (Ground 5), Lopez cannot show

prejudice. While it is the case that the government sought the forfeiture of the property and thereby

denied Lopez the possession and use of the property during the pendency of the forfeiture case,

Lopez has now received the full payment due on his property with interest. Lopez cannot show

that any alleged ineffectiveness of counsel or an alleged breach of the plea agreement has caused

him an injury for which he has not already received complete relief. Therefore, Lopez’s § 2255

Motion as to Ground 4 and Ground 5 is DENIED.

V. Ground 6 – Error Regarding Lopez’s Criminal History Category

Finally, Lopez alleges in Ground 6 that an addendum to the PSR stated that his criminal

history category was IV; whereas, the PSR itself stated that his criminal history category was

actually VI. The second addendum to the PSR stated that if the Court granted a three-level

reduction for acceptance of responsibility, Lopez’s “Total Offense Level of 43 combined with a

Criminal History Category of IV [sic] would result in a guideline imprisonment range of Life.”

Second Addendum to PSR 1 (no. 1:17-cr-10105, ECF No. 329). At sentencing the Court

concluded that Lopez’s criminal history put him in criminal history category VI.

The Court finds that the second addendum’s statement about a criminal history category of

IV was in error. As the Court found at sentencing and for the reasons set out in the PSR itself,

Lopez was correctly assigned a criminal history category of VI. Under the Guidelines, 13 or more

criminal history points puts a defendant in criminal history category VI. U.S.S.G. ch. 5, Sentencing

Table (2018 ed.). In order to be classified in criminal history category IV, a defendant must have

at least 7 but no more than 9 criminal history points. Id. The PSR assessed 13 criminal history

points based on Lopez’s prior convictions, and Lopez has not alleged that the PSR’s assessment

of his criminal history was erroneous, either at sentencing or now as part of his collateral attack on

his sentence. Lopez’s criminal record puts him in criminal history category VI. For purposes of

his § 2255 Motion, Lopez has not shown why the second addendum to the PSR’s error entitles him

to any relief.

To the extent that Lopez alleges Mr. Holton should have objected to the criminal history

category, Lopez cannot show that the second addendum to the PSR’s erroneous statement about

criminal history category IV has caused him any prejudice. The Court assessed Defendant’s

criminal history and determined at sentencing that Defendant’s criminal history category was VI,

not IV. What is more, the Guidelines range for any defendant with an adjusted offense level of 43

like Lopez is life in prison, whether the defendant has a criminal history category of IV or VI.

U.S.S.G. ch. 5. Therefore, Lopez’s § 2255 Motion is DENIED as to this issue.

VI. Appeal Issues

Pursuant to 28 U.S.C. § 2253(c)(1), the district court is required to evaluate the

appealability of its decision denying a § 2255 motion and to issue a certificate of appealability

(“COA”) “only if the applicant has made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2); see also Fed. R. App. P. 22(b). No § 2255 movant may appeal

without this certificate. The COA must indicate the specific issue or issues that satisfy the required

showing. 28 U.S.C. § 2253(c)(2) & (3). A “substantial showing” is made when the movant

demonstrates that “reasonable jurists could debate whether (or, for that matter, agree that) the

petition should have been resolved in a different manner or that the issues presented were adequate

to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)

(citation and internal quotation marks omitted); see also Henley v. Bell, 308 F. App’x 989, 990

(6th Cir. 2009) (per curiam) (same). A COA does not require a showing that the appeal will

succeed. Miller-El, 537 U.S. at 337; Caldwell v. Lewis, 414 F. App’x 809, 814–15 (6th Cir. 2011).

Courts should not issue a COA as a matter of course. Bradley v. Birkett, 156 F. App’x 771, 773

(6th Cir. 2005) (quoting Miller-El, 537 U.S. at 337). In this case, for the reasons previously stated,

Lopez’s claims lack substantive merit and, therefore, he cannot present a question of some

substance about which reasonable jurists could differ. The Court DENIES a certificate of

appealability.

The Sixth Circuit has held that the Prison Litigation Reform Act of 1995, 28 U.S.C. §

1915(a)-(b), does not apply to appeals of orders denying § 2255 motions. Kincade v. Sparkman,

117 F.3d 949, 951 (6th Cir. 1997). Rather, to appeal in forma pauperis in a § 2255 case, and

thereby avoid the appellate filing fee required by 28 U.S.C. §§ 1913 and 1917, the prisoner must

obtain pauper status pursuant to Fed. R. App. P. 24(a). Kincade, 117 F.3d at 952.

Rule 24(a) provides that a party seeking pauper status on appeal must first file a motion in

the district court, along with a supporting affidavit. Fed. R. App. P. 24(a)(1). However, Rule 24(a)

also provides that if the district court certifies that an appeal would not be taken in good faith, or

otherwise denies leave to appeal in forma pauperis, the prisoner must file his motion to proceed in

forma pauperis in the appellate court. See Fed. R. App. P. 24(a)(4)-(5).

In this case, for the same reasons the Court denies a certificate of appealability, the Court

determines that any appeal would not be taken in good faith. It is therefore CERTIFIED, pursuant

to Fed. R. App. P. 24(a), that any appeal in this matter would not be taken in good faith, and leave

to appeal in forma pauperis is DENIED. If Lopez files a notice of appeal, he must also pay the

full $605 appellate filing fee (see 28 U.S.C. §§ 1913, 1917) or file a motion to proceed in forma

pauperis and supporting affidavit in the Sixth Circuit Court of Appeals within thirty (30) days (see

Fed. R. App. P. 24(a)(4)-(5)).

IT IS SO ORDERED.

s/ S. Thomas Anderson

S. THOMAS ANDERSON

UNITED STATES DISTRICT JUDGE

Date: August 19, 2024.