UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-7953

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JUAN LOPEZ,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Statesville. Richard L. 

Voorhees, District Judge. (5:06-cr-00041-RLV-DCK-14; 5:10-cv00124-RLV)

Submitted: April 22, 2014 Decided: April 30, 2014

Before AGEE and THACKER, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

Juan Lopez, Appellant Pro Se. Thomas Richard Ascik, Assistant 

United States Attorney, Jill Westmoreland Rose, OFFICE OF THE 

UNITED STATES ATTORNEY, Asheville, North Carolina; Kevin Zolot, 

OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, 

for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Juan Lopez seeks to appeal the district court’s order 

denying relief on his 28 U.S.C. § 2255 (2012) motion. The order 

is not appealable unless a circuit justice or judge issues a 

certificate of appealability. 28 U.S.C. § 2253(c)(1)(B) (2012); 

see Slack v. McDaniel, 529 U.S. 473, 484 (2000) (discussing 

standard for obtaining certificate of appealability). Following 

careful review of the record, we grant a certificate of 

appealability on the issue of whether the district court erred 

in dismissing, without an evidentiary hearing, Lopez’s claim 

that his trial counsel rendered ineffective assistance by

failing to initiate plea negotiations after Lopez directed him 

to do so. 

An evidentiary hearing is required “[u]nless the 

motion and the files and records of the case conclusively show 

that the [movant] is entitled to no relief.” 28 U.S.C. 

§ 2255(b). Lopez contends that the district court erred by 

crediting trial counsel’s affidavit over his claims that counsel 

did not engage in plea negotiations after Lopez directed him to 

do so. We note that Lopez’s and trial counsel’s accounts of 

what occurred are starkly opposed. We also note that Lopez’s 

§ 2255 motion was not in conformity with the requirements of 

Rule 2(b)(5) of the Rules Governing Section 2255 Proceedings, 

which requires that a § 2255 motion “be signed under penalty of 
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perjury by the movant or by a person authorized to sign it for 

the movant.” The commentary to the Rules indicates that the 

appropriate remedy for a violation is to allow the movant to 

bring his motion into conformity with the rules rather than 

dismissing the motion outright. See Kafo v. United States, 467 

F.3d 1063, 1069-71 (7th Cir. 2006) (remanding to allow movant to 

conform motion to rules). 

The district court did not give Lopez the opportunity 

to bring his § 2255 motion into conformity with the rules, 

instead relying on trial counsel’s affidavit to reject Lopez’s 

claim on the merits. The Supreme Court has recently recognized 

the right to “effective counsel during plea negotiations.” 

Missouri v. Frye, 132 S. Ct. 1399, 1407-08 (2012); see Lafler v. 

Cooper, 132 S. Ct. 1376, 1384 (2012) (same). While there is no 

constitutional right to a plea agreement, see Weatherford v. 

Bursey, 429 U.S. 545, 561 (1977), and the decision to initiate 

plea negotiations is ordinarily a strategic decision within the 

purview of defense counsel, Hawkman v. Parratt, 661 F.2d 1161,

1171 (8th Cir. 1981), counsel is still required to be a 

“reasonably effective advocate” regarding the decision to seek a 

plea bargain. Brown v. Doe, 2 F.3d 1236, 1246 (2d Cir. 1993). 

Here, the evidence adduced at trial was so overwhelming that, if 

Lopez’s contention that he not only sought to enter a guilty 

plea but also directed counsel to negotiate with the Government 
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is credited, a debatable question arises regarding the 

effectiveness of trial counsel’s assistance.

Accordingly, we grant a certificate of appealability 

on Lopez’s claim that his trial counsel was ineffective for 

failing to initiate plea negotiations with the Government after 

Lopez directed him to do so, vacate the district court’s order,

and remand for further proceedings consistent with this opinion.∗ 

We deny a certificate of appealability as to all remaining 

issues. We dispense with oral argument because the facts and 

legal contentions are adequately presented in the materials 

before this court and argument would not aid the decisional 

process. 

VACATED AND REMANDED

 ∗ By this disposition, we express no view as to either the 

veracity of Lopez’s version of events or the proper disposition 

of this claim, leaving those determinations in the first 

instance to the district court.