After examining the briefs and appellate record, this panel has determined *

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument. This order and judgment is

not binding precedent, except under the doctrines of law of the case, res judicata,

and collateral estoppel. The court generally disfavors the citation of orders and

judgments; nevertheless, an order and judgment may be cited under the terms and

conditions of 10th Cir. R. 36.3.

F I LED

United States Court of Appeals

Tenth Circuit

September 6, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

 v.

LUCIANO LOPEZ,

 Defendant-Appellant.

No. 05-4267

(D.C. Nos. 2:05-CV-537-DAK and 

2:99-CR-443-DAK)

(D. Utah)

ORDER AND JUDGMENT

*

Before HARTZ, HOLLOWAY, and BALDOCK, Circuit Judges.

Luciano Lopez challenges the district court’s dismissal of his 28 U.S.C.

§ 2255 motion. We granted a certificate of appealability on the following issues:

(1) the applicability of § 2255(4); (2) the diligence with which Mr. Lopez should

have endeavored to find out that his former counsel had not filed a notice of

appeal; (3) the applicability of equitable tolling; and (4) the relevance of Roe v.
-2-

Flores-Ortega, 528 U.S. 470 (2000). We have jurisdiction under 28 U.S.C.

§§ 1291 and 2253(a). We reverse and remand for further proceedings.

Mr. Lopez was charged in a nine-count superseding indictment with various

firearms offenses. He pleaded guilty to two counts of being a felon in possession

of a firearm in violation of 18 U.S.C. § 922(g)(1) and was sentenced on

February 18, 2004. Sixteen months later, on June 27, 2005, Mr. Lopez filed a

motion seeking leave to file a motion under 28 U.S.C. § 2255. In that motion

Mr. Lopez contended that his Sixth Amendment rights were violated when his

attorney failed to file a notice of appeal after Mr. Lopez instructed him to do so.

The district court denied Mr. Lopez’s motion as untimely. The district court also

“decline[d] to exercise its discretion to equitably toll the one-year statute of

limitations.” R., Doc. 3 at 3. 

“[W]e review the district court’s legal rulings on a § 2255 motion de novo

and its findings of fact for clear error.” United States v. Pearce, 146 F.3d 771,

774 (10th Cir. 1998). In his § 2255 motion Mr. Lopez claimed that

“[i]mmediately following sentencing,” he informed his counsel, Mark S. Kouris,

that he wanted to appeal his sentence, and that he and Mr. Kouris agreed that

there were grounds for an appeal. R., Doc. 1 at 2. Based on that discussion,

Mr. Lopez relied on his counsel to file the notice of appeal. Mr. Lopez stated that

after he was transferred out of state custody to federal prison, he attempted to

contact his attorney by telephone and letter, but never received a response. He
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sent two letters via certified mail in April and June 2005 and attached the

signature receipts for those letters to his motion. Mr. Lopez contended that he

received no response from his attorney and that as soon as he learned about the

one-year filing limitation for § 2255 relief from a fellow inmate, he filed his

motion. 

In relevant part, § 2255 requires a motion seeking relief to be filed within

one-year of the later of the following:

(1) the date on which the judgment of conviction becomes final;

. . . .

(4) the date on which the facts supporting the claim or claims

presented could have been discovered through the exercise of due

diligence.

28 U.S.C. § 2255.

In denying Mr. Lopez’s motion, the district court ruled that because

Mr. Lopez’s conviction became final on February 28, 2004, his § 2255 motion

filed more than one year later was untimely. In its response brief filed with this

court, the government concedes that the district court failed to consider the

applicability of § 2255(4). As the government explains:

Inasmuch as Lopez contends that he attempted to contact his attorney

several times by telephone and mail concerning the status of his

appeal but received no response, § 2255(4) may apply to the present

case and Lopez should be given the opportunity to establish the date

on which he should have discovered, through the exercise of due

diligence, that no appeal was filed. If the district court finds that
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Lopez filed his motion to vacate within one year of that date, the

motion is timely under § 2255(4). 

Aplee. Br. at 7.

The date on which Mr. Lopez should have discovered his attorney’s failure

to file an appeal is a fact-specific inquiry. See United States v. Wims, 225 F.3d

186, 190-91 (2d Cir. 2000). We agree with the government that the record is

inadequate to determine at what point Mr. Lopez should have made this

discovery. We therefore agree that remand for further fact-finding on this issue is

required. See § 2255 (“Unless the motion and the files and records of the case

conclusively show that the prisoner is entitled to no relief, the court shall cause

notice thereof to be served upon the United States attorney, grant a prompt

hearing thereon, determine the issues and make findings of fact and conclusions

of law with respect thereto.”). Because we are remanding to the district court for

further fact-finding, we do not need to reach the issue of equitable tolling or the

applicability of Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000). 

The judgment of the district court is REVERSED and the case is

REMANDED for further proceedings.

Entered for the Court

Harris L Hartz

Circuit Judge