Lopez v. United States

Background

Carlos Lopez, who represented himself in this proceeding, moved under 28 U.S.C. § 2255 to vacate, set aside, or correct his federal sentence. He challenged 14 convictions entered after a 12-week jury trial in 2014 involving alleged participation in the Bronx Trinitarios Gang. The jury convicted him of racketeering offenses, murders and attempted murder in aid of racketeering, a narcotics conspiracy, and firearms offenses. The court sentenced Lopez to three mandatory life sentences, followed by 420 months’ imprisonment and five years of supervised release. The Second Circuit affirmed the judgment in 2019, and the Supreme Court denied a later request for review.

The court had initially denied Lopez’s § 2255 motion as time-barred after he did not respond to an order concerning whether he had sought Supreme Court review. After the Government confirmed that Lopez had joined a co-defendant’s request for Supreme Court review, the court vacated that denial, reopened the motion, and considered the Government’s opposition.

Legal standard

A § 2255 motion may provide relief for a constitutional violation, a jurisdictional defect, or a fundamental legal or factual error that caused a serious miscarriage of justice. Ineffective assistance of counsel requires proof of both deficient performance and prejudice under Strickland v. Washington. Deficient performance means that counsel’s work fell below an objectively reasonable professional standard. Prejudice means a reasonable probability that the result would have been different without the lawyer’s errors.

The court also explained that an evidentiary hearing is unnecessary when the motion and case records conclusively show that the prisoner is not entitled to relief. A hearing requires specific facts supported by competent evidence that, if proven, would justify relief.

Lopez’s claims

Aiding-and-abetting notice. Lopez argued that his lawyers failed to challenge the Government’s allegedly late notice that it would rely on aiding-and-abetting liability. The court rejected this claim because the superseding indictment expressly cited the aiding-and-abetting statute for the counts Lopez identified, including the three murder counts. The record also showed that the Government, the court, and defense counsel had discussed the aiding-and-abetting theory before and during the trial. The court concluded that counsel had no obligation to make a baseless objection.

Responsibility for co-conspirators’ crimes. Lopez argued that trial counsel failed to object to the court’s instruction concerning when a defendant may be held responsible for crimes committed by a conspirator, and that appellate counsel failed to challenge the instruction on appeal. The court found that trial counsel repeatedly opposed the instruction and that the objection was partially successful because the court limited the instruction to three racketeering acts rather than the six requested by the Government. The court further held that the instruction given was consistent with Second Circuit precedent, preserved the Government’s burden to prove guilt beyond a reasonable doubt, and was supported by evidence that Lopez participated in or assisted with the charged murders. The court therefore found no ineffective assistance.

**Firearms convictions and Davis.** Lopez faulted appellate counsel for not challenging his firearms convictions under United States v. Davis, which invalidated the firearms statute’s residual definition of a “crime of violence” as unconstitutionally vague. The court noted that Lopez’s direct appeal was filed and argued before Davis was decided, but considered the underlying challenge anyway. It held that Davis did not affect the firearms count based on a drug-trafficking crime. It also held that the other firearms convictions were not invalid because the underlying murder, assault, and attempted-murder offenses qualified as crimes of violence under the statute’s elements clause. The court additionally stated that the Second Circuit’s decision in the related appeal had already upheld comparable firearms convictions.

Acquittal motion on one firearms count. Lopez claimed that trial counsel failed to seek acquittal on the count charging discharge of a firearm in connection with a drug-trafficking offense. The record showed that counsel did move for a judgment of acquittal under Federal Rule of Criminal Procedure 29 on all counts and theories of liability, and that the court denied the motion. The court therefore rejected this claim. To the extent Lopez challenged the sufficiency of the evidence itself, the court stated that such a challenge could have been raised on direct appeal and could not be brought through this § 2255 motion.

Presentence report. Lopez argued that counsel should have objected to the presentence report’s treatment of the murders as first-degree murder for sentencing-guideline purposes. The court rejected the claim for three reasons: it found that the evidence overwhelmingly showed premeditation; the sentencing guidelines independently applied the first-degree-murder guideline when the offense level was based on murder in aid of racketeering; and the mandatory life sentences meant that any guideline-calculation error would not have affected the sentence.

Ruling

Judge Paul A. Engelmayer denied Lopez’s § 2255 motion as meritless. The court found that Lopez had not shown deficient performance or prejudice, and that the record showed overwhelming evidence of guilt. The court also denied an evidentiary hearing because Lopez’s allegations were conclusory, contradicted by the record, or legally insufficient even if proven.

The court declined to issue a certificate of appealability because Lopez had not made a substantial showing that a federal right had been denied. It also certified that an appeal would not be taken in good faith and denied permission to appeal without paying filing fees. The clerk was directed to close the related civil case and mail Lopez a copy of the order.