UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

SOUTH BEND DIVISION 

UNITED STATES OF AMERICA 

 v. 

VICTOR HUGO MARTINEZ-LOPEZ 

) 

) 

) 

) 

) 

Case No. 3:15-CR-076 JD 

 3:17-CV-651 JD 

 

OPINION AND ORDER

The indictment in this case charged Defendant Victor Martinez-Lopez (“MartinezLopez”) with two counts of distributing a mixture or substance containing methamphetamine, in 

violation of 21 U.S.C. § 841(a)(1), and one count of conspiracy to possess and distribute 

methamphetamine, in violation of 21 U.S.C. § 846. [DE 9] Martinez-Lopez pled guilty with the 

benefit of a plea agreement to the two distribution counts. [DE 17-1] This Court accepted 

Martinez-Lopez’s plea of guilty, accepted his plea agreement, and found him guilty on 

November 6, 2015. [DE 24] On August 31, 2016, the Court sentenced him to 294 months of 

imprisonment on each of the counts concurrently, to be followed by six years of supervised 

release. [DE 58] 

Now proceeding pro se, Martinez-Lopez has filed a motion under 28 U.S.C. § 2255, 

attacking his sentence as well as the sufficiency of the indictment underlying his conviction. 

After instructing the government to respond and after reviewing the instant motion, the 

government’s response, and Martinez-Lopez’s reply, the Court will dismiss his claims and deny 

the issuance of a certificate of appealability. 

 
2 

FACTUAL BACKGROUND 

 Martinez-Lopez was a member of an interstate methamphetamine distribution conspiracy. 

As part of his involvement, he would shuttle drugs from a supplier in Texas to Elkhart, Indiana. 

There, he would accept either cash or methamphetamine for his efforts. He did this 

approximately eight times between 2014 and 2015. Martinez-Lopez also organized other large 

shipments of drugs from Texas to Indiana, sold methamphetamine to numerous individuals 

throughout Indiana and Michigan, and directed others to do so, all as part of the larger 

conspiracy. 

 The government charged Martinez-Lopez with two counts of distributing 

methamphetamine and one count of conspiracy to possess and distribute methamphetamine. He 

plead guilty with the benefit of a plea agreement to the two distribution charges. At the change of 

plea hearing, the magistrate judge elicited sworn testimony from Martinez-Lopez confirming that 

he had consulted with his attorney regarding the plea agreement, its contents, and its 

consequences, that Martinez-Lopez understood those consequences, and that he entered into the 

plea agreement knowingly and voluntarily. 

 The case proceeded to sentencing, where the Court imposed a 294-month sentence on 

each of the distribution counts, to run concurrently. As part of its Guidelines calculation, the 

Court imposed a two-level enhancement for Martinez-Lopez’s role as a leader or organizer in the 

conspiracy under U.S.S.G. § 3B1.1(c). Martinez-Lopez did not object to this enhancement, but 

he did successfully oppose a separate two-level enhancement for knowingly distributing 

unlawfully imported methamphetamine under § 2D1.1(b)(5). Just under a year after his 

sentencing, Martinez-Lopez filed the instant § 2255 motion. 

 
3 

STANDARD OF REVIEW 

Section 2255(a) of Title 28 provides that a federal prisoner may claim “the right to be 

released upon the ground that the sentence was imposed in violation of the Constitution or laws 

of the United States, or that the court was without jurisdiction to impose such sentence, or that 

the sentence was in excess of the maximum authorized by law, or is otherwise subject to 

collateral attack, [and] may move the court which imposed the sentence to vacate, set aside or 

correct the sentence.” 28 U.S.C. § 2255(a). The Seventh Circuit has recognized that § 2255 relief 

is appropriate only for “an error of law that is jurisdictional, constitutional, or constitutes a 

fundamental defect which inherently results in a complete miscarriage of justice.” Harris v. 

United States, 366 F.3d 593, 594 (7th Cir. 2004) (citation omitted). Further, “a Section 2255 

motion is neither a recapitulation of nor a substitute for a direct appeal.” Olmstead v. United 

States, 55 F.3d 316, 319 (7th Cir. 1995) (citation omitted). Relief under § 2255 is extraordinary 

because it seeks to reopen the criminal process to a person who has already had an opportunity of 

full process. Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007) (citing Kafo v. 

United States, 467 F.3d 1063, 1068 (7th Cir. 2006)). A court may also deny a § 2255 motion 

without an evidentiary hearing if “the motion and the files and records of the case conclusively 

show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). 

DISCUSSION

 Martinez-Lopez’s claims can be divided into two broad categories. His first set of 

substantive claims includes arguments that the indictment was deficient because it did not 

include either the mens rea associated with his offenses or the drug quantity amount, and that he 

should not have received an enhancement under Guidelines § 3B1.1(c) for his aggravating role in 

the offense. Martinez-Lopez’s second set of claims all relate to the ineffective assistance of 
4 

counsel. The Court will first address Martinez-Lopez’s substantive claims before moving on to 

his claims for ineffective assistance. 

A. Substantive Claims 

 Independent from his ineffective assistance claims, Martinez-Lopez argues that the 

indictment should have, but did not contain allegations of mens rea and drug quantity [DE 64 at 

5-6], and that the aggravating role enhancement he received at sentencing should not apply to 

him. [DE 64-1 at 5] But Martinez-Lopez has already waived these claims. His plea agreement 

contained the following language: 

I expressly waive my right to appeal or to contest my conviction and all 

components of my sentence or the manner in which my conviction or my sentence 

was determined or imposed, to any Court on any ground other than a claim of 

ineffective assistance of counsel, including any appeal under Title 18, United 

States Code, Section 3742 or any post-conviction proceedings, including but not 

limited to, a proceeding under Title 28, United States Code, Section 2555. 

[DE 17-1 ¶ 9(d)] In the Seventh Circuit, plea agreements that contain waivers of collateral 

review are generally enforceable. Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999) 

(“[W]aivers are enforceable as a general rule; the right to mount a collateral attack pursuant to § 

2255 survives only with respect to those discrete claims which relate directly to the negotiation 

of the waiver.”); see also United States v. Worthen, 842 F.3d 552, 554 (7th Cir. 2016) 

(“Generally speaking, appeal waivers are enforceable and preclude appellate review.”). 

Martinez-Lopez stated under oath at his sentencing hearing that he understood that 

waiver [Sent. Tr. at 37:23-38:5], and the Court found his plea to be knowing and voluntary. 

Moreover, his substantive claims do not fall within any exceptions to the enforceability of 

waivers recognized by the Seventh Circuit. See United States v. Smith, 759 F.3d 702, 706 (7th 
5 

Cir. 2014).1

 Thus, the waiver here is enforceable, and Martinez-Lopez’s substantive claims fall 

short. 

1. Contents of the Indictment 

 Waiver notwithstanding, Martinez-Lopez’s substantive claims regarding the indictment’s 

sufficiency still fail. First, he cannot argue that the indictment “does not contain the mens-rea for 

a conviction under Title 21 841(a)(1) or 846” [DE 64 at 5], and therefore “does not properly 

allege an offense against the United States” because it does not set forth all the elements of the 

charged offenses. [DE 64-1 at 2] Indeed, Counts 1 and 2 of indictment (the Counts to which 

Martinez-Lopez plead) allege that Martinez-Lopez “knowingly and intentionally” distributed a 

mixture or substance containing methamphetamine. Therefore, the indictment sufficiently alleges 

the element of criminal intent. See United States v. Johnson, 127 F.3d 625, 628 (7th Cir. 1997) 

(The elements of an offense under 21 U.S.C. § 841(a)(1) include that the defendant “knowingly 

and intentionally” distributed a controlled substance.). 

 Second, Martinez-Lopez argues that the indictment lacks allegations as to the drug 

quantity in this case. Relying on Apprendi v. New Jersey, 530 U.S. 466 (2000), he argues that 

drug quantity must be charged in the indictment and proven beyond a reasonable doubt. [DE 64-

 

1

 For example, Martinez-Lopez’s substantive claims might overcome waiver if he contended that his 

counsel’s ineffectiveness related specifically to his plea agreement’s appeal waiver or its negotiation. See 

Smith, 759 F.3d at 706-707 (citing Hurlow v. United States, 726 F.3d 958, 964-66 (7th Cir. 2013) (“The 

sole type of ineffectiveness claim we have said that a defendant may not waive is an ineffectiveness claim 

having to do with the waiver (or the plea agreement as a whole) and its negotiation.”). None of MartinezLopez’s claims relate to the appeal waiver in his plea agreement. And while his reply brief appears to 

blame a lack of understanding as to the appeal waiver (and perhaps its inclusion in the plea agreement) on 

defense counsel’s ineffectiveness, this argument was not included in the § 2255 motion itself. It is 

therefore not properly before the Court and will not be considered. Narducci v. Moore, 572 F.3d 313, 324 

(7th Cir. 2009) (“[T]he district court is entitled to find that an argument raised for the first time in a reply 

brief is forfeited.”); United States. v. Hughes, 970 F.2d 227, 235 n. 6 (7th Cir. 1992) (“[A]rguments raised 

for the first time in a reply brief are waived.”); see also Adkins v. United States, 2016 WL 2625362, *3 n. 

2 (N.D. Ind. May 9, 2016) (declining to address issues in reply brief not contained in the § 2255 motion 

itself); United States v. Joiner, 847 F. Supp. 604 (N.D. Ill. 1994) (same). 
6 

1 at 4-5] “Apprendi holds that a sentence may not exceed a statutory maximum unless the 

circumstances that raise that cap are established, to the jury’s satisfaction, beyond a reasonable 

doubt.” United States v. Demirjian, 20 F. App’x 524, 527 (7th Cir. 2001). The maximum 

statutory sentence for distributing even the slightest amount of methamphetamine is 20 years 

(240 months). 21 U.S.C. § 841(b)(1)(C). Martinez-Lopez received a 294-month sentence, which 

is obviously longer than 20 years, but because he had a prior felony conviction for distributing 

cocaine, the government filed a sentencing enhancement notice in compliance with 21 U.S.C. § 

851. This subjected Martinez-Lopez to an enhanced statutory maximum of 30 years (360 

months). See § 841(b). Thus, because his sentence fell within the enhanced statutory maximum, 

his Apprendi claim fails. United States v. Abdulahi, 523 F.3d 757, 760 (7th Cir. 2008) (“As we 

have repeatedly explained, Apprendi has no application to cases like this one where the sentence 

is below the statutory maximum.”).2

2. Aggravating Role Adjustment 

Martinez-Lopez also argues that he should not have received a two-level enhancement 

under Guidelines § 3B1.1(c) for his role as a leader, organizer, manager, or supervisor. 

According to him, his role was limited to that of a driver. [DE 64-1 at 6] Regardless of his appeal 

waiver, Martinez-Lopez’s argument fails at the outset because challenges to a prisoner’s 

Guidelines sentencing range are not cognizable on § 2255 review. See Hawkins v. United States, 

706 F.3d 820 (7th Cir. 2013) (holding that an error in calculating a defendant’s guidelines 

 

2

 The government’s § 851 notice is the subject of one of Martinez-Lopez’s ineffective assistance claims, 

discussed below. But even assuming arguendo that the enhanced penalty did not apply to him, MartinezLopez’s Apprendi claim would still fail, even though 294 months exceeds the basic 20-year statutory 

maximum. He was convicted on two counts, and “[n]othing in Apprendi restricts the imposition of 

consecutive sentences.” Demirjian, 20 F. App’x at 527. Thus, the maximum Martinez-Lopez could have 

received without the enhanced penalty is 40 years’ imprisonment (two 20-year sentences, served 

consecutively). He received a little more than half of that “and therefore as a practical matter has nothing 

to gain” from this argument. Id. 
7 

sentencing range does not justify post-conviction relief where the defendant was sentenced under 

the post-Booker advisory guidelines regime). Section 2255(a) authorizes post-conviction 

alteration of a sentence that “was imposed in violation of the Constitution or laws of the United 

States, or that the court was without jurisdiction to impose ..., or that ... was in excess of the 

maximum authorized by law, or is otherwise subject to collateral attack.” Here, Martinez-Lopez 

merely argues that the Court should not have applied an aggravating role enhancement to his 

offense level; that is not a Constitutional attack. Under Booker, the sentencing judge must 

“impose a sentence sufficient, but not greater than necessary, to comply with the purposes [of 

sentencing] set forth in” section 3553(a). Hawkins, 706 F.3d at 823. 

Even still, here, Martinez-Lopez qualified for an aggravating role enhancement. 

According to the relevant and unchallenged portions of the presentence report, he directed two 

couriers to transport methamphetamine on about a dozen separate occasions, organized 

shipments of methamphetamine from Texas and Georgia to Indiana, and organized the sale of 

two different methamphetamine shipments through his wife while incarcerated. [DE 33 ¶ 19] 

This conduct clearly earns him an aggravating role enhancement. See App. Note 2 (“To qualify 

for an adjustment under this section, the defendant must have been the organizer, leader, 

manager, or supervisor of one or more other participants.”). 

For all these reasons, Martinez-Lopez’s substantive claims regarding the indictment’s 

sufficiency and the Guidelines enhancement will be dismissed. 

B. Ineffective Assistance of Counsel 

 Martinez-Jimenez additionally brings several claims by way of ineffective assistance of 

counsel. To prevail on a claim of ineffective assistance, a defendant must first show that his 

attorney performed deficiently—that the representation was incompetent and “fell below an 
8 

objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 688 (1984); 

Koons v. United States, 639 F.3d 348, 351 (7th Cir. 2011). Second, a defendant must show that 

“the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687. 

1. Pretrial Investigation and Bill of Particulars 

Martinez-Lopez argues that “the outcome would be a lot different” had his initial 

attorney, Mark Doty, requested a bill of particulars or properly investigated his case. [DE 64-1 at 

9] But these blanket assertions do not support a valid claim for ineffective assistance absent 

some sort of indication as to what information Mr. Doty would have uncovered by investigating 

the case and requesting a bill of particulars. Martinez-Lopez has not referenced any additional 

information here, and so he cannot demonstrate how Mr. Doty’s alleged shortcomings impacted 

the outcome of this case. For that reason, Martinez-Lopez has failed to demonstrate the requisite 

prejudice under Strickland. 

Moreover, the record belies Martinez-Lopez’s assertion that his attorney failed to conduct 

any pretrial investigation. Mr. Doty received the government’s discovery and independently 

reviewed it. [Doty Aff. ¶ 3] He also discussed the case with the federal prosecutor on multiple 

occasions, and the prosecutor provided him with information regarding drug quantity, estimated 

relevant conduct, and Martinez-Lopez’s criminal history. Id. Mr. Doty reviewed all of this 

information with his client and explained to him that his relevant conduct and criminal history 

would result in him facing a statutory maximum sentence of 30 years. Id. ¶¶ 4, 6-9. MartinezLopez also described his criminal activity to Mr. Doty and detailed his involvement with illegal 

narcotics. Id. ¶ 5. He also told his attorney that he had admitted his conduct to law enforcement 

after his arrest. Id. Mr. Doty’s actions here constituted sufficient investigation into MartinezLopez’s case. See Bethel v. United States, 458 F.3d 711, 717 (7th Cir. 2006) (“When assessing 
9 

counsel’s performance, we have noted that a reasonably competent lawyer will attempt to learn 

all of the relevant facts of the case, make an estimate of a likely sentence, and communicate the 

results of that analysis to the client before allowing the client to plead guilty.”); see also United 

States v. Cieslowski, 410 F.3d 353, 358-59 (7th Cir.2005), cert. denied, 546 U.S. 1097, 126 S. 

Ct. 1021, 163 L.Ed.2d 866 (2006) (to prove inadequate performance, a defendant must show that 

counsel did not attempt to learn the facts of the case and failed to make a good-faith estimate of a 

likely sentence). For these reasons, Martinez-Lopez’s ineffective assistance claim based on 

counsel’s alleged failure to investigate will be dismissed. 

2. Enhanced Statutory Maximum 

As discussed above, due to Martinez-Lopez’s prior felony conviction for distributing 

cocaine, he was subject to an enhanced 30-year statutory maximum under 21 U.S.C. §§ 841(b) 

and 851. The government filed the required notice of this enhancement, but Martinez-Lopez now 

argues that he received ineffective assistance because his attorney never discussed the 

consequences of this notice, nor advised him of the higher statutory maximum sentence he would 

face.3

 [DE 64 at 6; 64-1 at 6-7] 

Martinez-Lopez’s claim fails because his attorney indeed explained to him, that, due to 

his relevant conduct and prior criminal convictions, he would be facing a higher statutory 

maximum sentence under §§ 841(b) and 851, and that the plea agreement reflected that 

enhancement. [Doty Aff. ¶¶ 8-9, 11-12] However, even if Mr. Doty had neglected to explain the 

enhanced statutory maximum, Martinez-Lopez’s claim fails anyway because he does not even 

attempt to show that, absent Mr. Doty’s alleged failure, he would have gone to trial rather than 

 

3

 Martinez-Lopez also claims that “the [plea] agreement did not discuss the potential effect of the Section 

851 filing,” but that is false. [DE 64-1 at 6] Paragraph 9(c) of the plea agreement expressly states that the 

maximum penalties for Martinez-Lopez’s violations included “a maximum of 30 years imprisonment” (as 

opposed to the normal 20-year maximum sentence). 
10 

accept the plea agreement. Hill v. Lockhart, 474 U.S. 52, 59 (1985) (“[I]n order to satisfy the 

“prejudice” requirement, the defendant must show that there is a reasonable probability that, but 

for counsel’s errors, he would not have pleaded guilty and would have insisted on going to 

trial.”). Nor is the Court convinced that Martinez-Lopez could show such prejudice. It defies 

logic to think that Martinez-Lopez would have turned down the plea agreement in order to face a 

combined 60-year maximum on Counts 1 and 2 at trial, when he was already willing to plead to 

Counts 1 and 2 believing that the statutory maximum was a combined 40 years. This claim will 

be dismissed. 

3. Consequences of Plea Agreement 

Third, Martinez-Lopez argues that Mr. Doty was “ineffective during the plea process” 

such that Martinez-Lopez did not understand the “consequences of his plea.” [DE 64 at 4, 8] To 

establish the prejudice element for this claim, Martinez-Lopez would have to prove that 

(1) because of his attorney’s ineffective assistance, he misunderstood the consequences of his 

plea agreement, and (2) he would not have pled guilty absent that misunderstanding. See 

Thompson v. United States, 732 F.3d 826 (7th Cir. 2013) (holding that the defendant could not 

establish prejudice where the record showed he properly understood the consequences of his 

plea); Berkey v. United States, 318 F.3d 768 (7th Cir. 2003) (rejecting an ineffective-assistance 

claim where, despite the defendant’s arguments to the contrary, his statements at the change of 

plea hearing confirmed that he understood the sentencing process and his potential sentences, 

and that no promises were made to induce his plea). 

Here, the record indicates that Martinez-Lopez cannot satisfy his burden to show 

prejudice. In particular, he confirmed at the change of plea hearing that he had no difficulty 

communicating with Mr. Doty, that he had discussed the case in general and the plea agreement 
11 

in particular with Mr. Doty, and that he believed he had told Mr. Doty everything Mr. Doty 

needed to know in order to represent him. [Change of Plea Tr. at 7:23-25, 8:13-9:5] MartinezLopez stated that he understood that he could be sent to prison for up to 30 years on each count, 

for a total of 60 years on Counts 1 and 2. Id. at 16:11-17:2. He also acknowledged that he had 

discussed the Guidelines with Mr. Doty, that he read the plea agreement, discussed it with his 

attorney, understood it, and signed it. Id. at 19:6-16. On top of that, Martinez-Lopez stated in his 

plea agreement that he read and discussed Counts 1 and 2 with Mr. Doty, and that Mr. Doty had 

informed him regarding these charges and his defenses. [DE 17-1 ¶¶ 4-5] Martinez-Lopez 

understood that he faced a maximum prison term of 30 years for each count, waived his right to 

appeal on any ground other than ineffective assistance of counsel, and agreed that his relevant 

conduct included the distribution of 45 kilograms of methamphetamine. Id. ¶¶ 9(c)-(d), (h). He 

stated that he believed Mr. Doty had “done all that anyone could do to counsel and assist [him]” 

and that he understood “the proceedings in this case against [him].” Id. ¶ 11. 

In sum, Martinez-Lopez’s statements under oath at the change of plea hearing confirm 

that, notwithstanding any subpar advice he may have received from his attorney, he nonetheless 

understood the consequences of his plea agreement. Thus, he cannot show that he was prejudiced 

by any ineffective assistance, so his claim fails. See Missouri v. Frye, 566 U.S. 134, 142 (2012) 

(“Before a guilty plea is entered the defendant’s understanding of the plea and its consequences 

can be established on the record. This affords the State substantial protection against later claims 

that the plea was the result of inadequate advice.”); Thompson, 732 F.3d at 830 (“[The 

defendant] cannot show that [his attorney’s] alleged failure to clarify the sentencing 

consequences of pleading guilty to conspiracy was a ‘decisive factor’ in his decision to forgo 

trial because the district court’s explanation of the sentencing process at [the defendant’s] plea 
12 

colloquy removed any possible prejudice of [the attorney’s] advice.”); Berkey, 318 F.3d at 773. 

Therefore, Martinez-Lopez’s claim that he did not understand the consequences of his plea 

agreement will be dismissed.4

4. Failure to Object to Drug Quantity 

Martinez-Lopez claims that he was not responsible for the 45 kilograms attributed to him 

in the presentence report, which “contained no supporting data explaining how it arrived at the 

45-kilogram amount.” [DE 64-1 at 5] He argues that he cannot be held personally accountable 

for distributing any amount above the 84 grams involved in two controlled buys because the 

indictment “lists no co-conspiracy, with no one else, or any evidence that Petitioner did distribute 

45 kilograms of drugs.” Id. Martinez-Lopez claims that he suffered from ineffective assistance of 

counsel because he “told his lawyer the drug amount was wrong and his attorney failed to object 

to it.” [DE 64-1 at 4] For clarity’s sake, two attorneys were substantively involved in 

representing Martinez-Lopez during the sentencing phase: Mr. Doty, who represented MartinezLopez through the finalization of the presentence report; and Philip Skodinski, who took over 

later and represented Martinez-Lopez through sentencing.5

 

 

4

 Martinez-Lopez slapped the allegation that he “lacked the capacity to plead guilty” because “it was 

impossible for him to apprehend the magnitude of his actions or the attendant consequences” to the end of 

his motion. [DE 64-1 at 12] To the extent this argument is a new, standalone argument that MartinezLopez lacked the mental capacity to understand the proceedings, the claim will be dismissed. Any such 

argument is undermined by Martinez-Lopez’s sworn statements to the contrary made at the change of 

plea hearing, where the Court repeatedly inquired as to whether he understood the nature of the 

proceedings and he consistently answered in the affirmative. Those statements are presumed to be 

truthful. Furthermore, neither Martinez-Lopez nor his attorneys ever indicated that he was unable to 

understand the nature of the charges and the consequences of his plea. See Gray v. United States, No. 03 

C 2942, 2004 WL 2921858, *4 (N.D. Ill. Dec. 13, 2004) (rejecting § 2255 petitioner’s mental capacity 

claim based on his statements to the contrary made in open court at the change of plea hearing and where 

he did not previously call his competency into question) (citing Bridgeman v. United States, 229 F.3d 

589, 592 (7th Cir. 2000)). 

5

 Attorneys H. Jay Stevens and Peter Boyles also briefly entered their appearances on behalf of MartinezLopez. 
13 

First of all, Martinez-Lopez’s assertion that he was not charged with conspiracy is 

mistaken. Count 3 of the indictment charged him with knowingly conspiring with other persons 

to distribute methamphetamine and possessing methamphetamine with the intent to distribute. 

[DE 9 at 3] But Martinez-Lopez’s argument is better characterized as pinned to his belief that he 

can only be held accountable at sentencing for the two distribution counts he plead guilty to and 

was convicted on. However, the Guidelines require the Court to consider as relevant conduct “all 

acts and omissions ... that were part of the same course of conduct or common scheme or plan as 

the offense of conviction.” U.S.S.G. § 1B1.3(a)(2). Here, relevant conduct pertaining to 

Martinez-Lopez’s conviction for distribution plainly encompasses the larger conspiracy of which 

the two convicted offenses were a part. 

With that clarification, the presentence report provides significant detail as to why 

Martinez-Lopez is responsible for 45 kilograms of methamphetamine. He sold 84 grams of 

methamphetamine over the course of two controlled buys involving a confidential informant, he 

arranged two methamphetamine sales while in custody, totaling 241.7 grams, and he made 

approximately eight deliveries of methamphetamine from Texas to Elkhart, each trip involving 8 

or 9 kilograms of product. [DE 33 ¶¶ 8-9, 11-13, 16] In total, Martinez-Lopez was thus 

responsible for at least 64.3257 kilograms of methamphetamine, far more than the 45 kilograms 

attributed to him. Id. ¶ 16. But because the Guidelines drug table at § 2D1.1(c)(1) only accounts 

for amounts of “45 KGs or more of Methamphetamine,” he could only be held responsible under 

the Guidelines for, at most, 45 kilograms. Id. 

Any objection by either Mr. Doty or Mr. Skodinski to the drug amount would have been 

futile. The presentence report correctly sets forth the amount of relevant methamphetamine and 

Martinez-Lopez agreed to the 45-kilogram amount as relevant conduct in his plea agreement. 
14 

[DE 17-1 ¶ 9(h)] Mr. Doty claims that Martinez-Lopez never asked him to object to the drug 

amount after explaining to Martinez-Lopez why he would be held accountable for 45 kilograms 

[Doty Aff. ¶¶ 7, 11-12, 15], and notes that any objection would have resulted in a three-level 

increase in Martinez-Lopez’s Guidelines offense level because the government would have 

withdrawn its recommendation that he receive credit for acceptance of responsibility. Id. ¶ 15.6

There was no objection to be made here; Mr. Doty and Mr. Skodinski therefore did not provide 

ineffective assistance by making the strategic decision to refrain from pointlessly objecting to the 

drug quantity. See Strickland, 466 U.S. at 689-91 (holding that a convicted defendant must show 

that the omissions of counsel giving rise to an ineffective assistance claim must not have been 

the result of reasonable professional judgment). This claim will be dismissed. 

5. Failure to Appeal 

Lastly, Martinez-Lopez claims that Mr. Skodinski failed to file a direct appeal of his 

sentence despite requests to do so. [DE 64 at 5; 64-1 at 5-6] It appears that any such appeal 

would have pertained to the drug quantity, which was covered by Martinez-Lopez’s plea 

agreement. [Skodinski Aff. ¶ 3] Mr. Skodinski contests this; he maintains that Martinez-Lopez 

did not inform him that he wished to file an appeal until well after the deadline to do so had 

passed. [Skodinski Aff. ¶¶ 4-5] Regardless of who said what, as discussed above, MartinezLopez made a knowing and voluntary waiver of his appellate rights in his plea agreement. That 

valid waiver “knocks out [his] argument that his lawyer failed to follow his direction on appeal.” 

Nunez v. United States, 546 F.3d 450, 453 (7th Cir. 2008). As the Seventh Circuit has stated, “a 

lawyer has a duty to the judiciary to avoid frivolous litigation – and an appeal in the teeth of a 

valid waiver is frivolous.” Id. at 455. So, even assuming Martinez-Lopez told Mr. Skodinski to 

 

6

 The government maintains it would have reacted the same way had Mr. Skodinski objected at the 

sentencing hearing itself. [DE 75 at 23] 
15 

file an appeal, Mr. Skodinksi did not provide ineffective assistance of counsel by not doing so 

when said appeal would have been dismissed in short order. Id. at 456 (“Once a defendant has 

waived his right to appeal not only in writing but also in open court under Rule 11(b)(1)(N), the 

sixth amendment does not require counsel to disregard the waiver.”). In addition, had Mr. 

Skodinski proceeded with an appeal in the face of Martinez-Lopez’s valid waiver, he would have 

put the benefits inherent in the plea agreement at risk. See id. at 455 (citing cases for the 

proposition that “when a defendant appeals despite agreeing not to do so, the prosecutor may 

withdraw concessions made as part of the bargain”). Here, an appeal would have allowed the 

prosecutor to reinstate the dismissed charge or to ask for an increase in sentence based on 

Martinez-Lopez’s failure to continuously maintain his acceptance of responsibility. [Skodinski 

Aff. ¶ 3] With the valid appeal waiver in place, Mr. Skodinski’s duty to protect MartinezLopez’s interests militated against filing an appeal. See Nunez, 546 F.3d at 455. 

Therefore, even if Martinez-Lopez timely asked Mr. Skodinski to file an appeal, Mr. 

Skodinski adhered to the requirement that “[u]nless a non-frivolous issue could be raised on 

appeal, counsel should protect the client’s interest in retaining the benefit of the plea bargain.” 

Id. This claim will be dismissed. 

CERTIFICATE OF APPEALABILITY 

Pursuant to Rule 11 of the Rules Governing Section 2255 Proceedings for the United 

States District Courts, the Court must “issue or deny a certificate of appealability when it enters a 

final order adverse to the applicant.” A certificate of appealability may be issued “only if the 

applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. 

§ 2253(c); Rule 11, Rules Governing Section 2255 Proceedings for the United States District 

Courts. The substantial showing standard is met when “reasonable jurists could debate whether 
16 

(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.’” Slack v. 

McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 

(1983)); see Young v. United States, 523 F.3d 717 (7th Cir. 2008). Here, for the reasons just 

discussed, the Court does not find that Martinez-Lopez has made a substantial showing of the 

denial of any constitutional rights, or that any issues in this motion are adequate to deserve 

encouragement to proceed further. The Court therefore denies the issuance of a certificate of 

appealability. 

The Court advises Martinez-Lopez that pursuant to Rule 22(b) of the Federal Rules of 

Appellate Procedure, when the district judge denies a certificate of appealability, the applicant 

may request a circuit judge to issue the certificate. The Court further advises Martinez-Lopez 

that any notice of appeal of this judgment must be filed within 60 days after the judgment is 

entered. Fed. R. App. P. 4(a); Guyton v. United States, 453 F.3d 425, 427 (7th Cir. 2006) (stating 

that “the time to contest the erroneous denial of [the defendant’s] first § 2255 motion was within 

60 days of the decision”). 

CONCLUSION 

 For those reasons, the Court DENIES Martinez-Lopez’s motion for relief under § 2255 

[DE 64], and DENIES the issuance of a certificate of appealability. Lastly, the Court DENIES

Martinez-Lopez’s request for an evidentiary hearing. [DE 64-1 at 5] The district court in which a 

prisoner files his § 2255 petition “is required to hold an evidentiary hearing ‘[u]nless the motion 

and the files and records of the case conclusively show that the prisoner is entitled to no relief 

....’” Sawyer v. United States, 874 F.3d 276, 278 (7th Cir. 2017) (quoting 28 U.S.C. § 2255(b)). 
17 

As discussed above, Martinez-Lopez is entitled to no relief here, and therefore no evidentiary 

hearing need be held. The Clerk is hereby DIRECTED to enter judgment accordingly. 

SO ORDERED. 

 ENTERED: May 2, 2018 

 

 /s/ JON E. DEGUILIO 

 Judge 

 United States District Court