FILED

United States Court of Appeals

Tenth Circuit

May 3, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

In re:

ERIC R. LOPEZ,

Movant.

No. 10-1163

ORDER

Before LUCERO, MURPHY, and HARTZ, Circuit Judges.

Eric R. Lopez moves for authorization to file a second or successive motion

to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. We deny

authorization. 

In 2005, Mr. Lopez was convicted of one count of voluntary manslaughter

in violation of 18 U.S.C. §§ 1112 and 1153 and two counts of using a minor to

commit a crime of violence in violation of 18 U.S.C. §§ 25 and 1153. He was

sentenced to fifteen years’ imprisonment. On direct appeal, we affirmed,

rejecting his arguments that there was insufficient evidence to support the

manslaughter conviction and that the addition of the two counts of using a minor

violated the Speedy Trial Act. United States v. Lopez, 252 F. App’x 908, 912-15

(10th Cir. 2007), cert. denied, 552 U.S. 1223 (2008). 

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In February 2009, Mr. Lopez filed a § 2255 motion asserting the Speedy

Trial Act claim. The district court denied relief because this claim had been

fairly decided on direct appeal and Mr. Lopez could not relitigate it in a § 2255

proceeding. On appeal, Mr. Lopez again asserted the Speedy Trial Act claim. 

Also, for the first time, he asserted actual innocence based on ineffective

assistance of counsel. He contended that counsel was ineffective for failing to

interview and call an eye-witness to testify that he did not strike the fatal blow

resulting in the victim’s death. He, however, admitted that he did not have an

affidavit from the eye-witness to support his claim. We denied a certificate of

appealability. United States v. Lopez, 343 F. App’x 314, 315-16 (10th Cir. 2009),

cert. denied, 130 S. Ct. 1103 (2010). 

Mr. Lopez now seeks authorization to assert one claim in a second or

successive § 2255 motion: his counsel was ineffective for failing to interview and

call his daughter Florita Lopez to testify in support of his defense that he did not

strike the blow that killed the victim and that he is actually innocent. According

to Mr. Lopez, she is the only one who observed the entire altercation, and she,

along with himself and the juveniles, knows who struck the fatal blow. 

Mr. Lopez presents an affidavit of his daughter in which she swears that he did

not strike the blow causing death to the victim, but she knows who did, and that

she was never called to testify at his trial, but if she had been called, she would

have testified that he did not strike the blow causing the victim’s death. 

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Mr. Lopez contends that this affidavit is newly discovered evidence sufficient to

show that no reasonable factfinder would have found him guilty of killing the

victim. He asserts that this information was previously unavailable because his

daughter chose not to have contact with him and, in the past, she was romantically

involved with the guilty juvenile and did not want to testify against him. 

We will authorize the filing of a second or successive § 2255 motion if the

movant shows “newly discovered evidence that, if proven and viewed in light of

the evidence as a whole, would be sufficient to establish by clear and convincing

evidence that no reasonable factfinder would have found the movant guilty of the

offense.” 28 U.S.C. § 2255(h)(1). 

Mr. Lopez fails to make this showing. First, the information in the

affidavit is not newly discovered evidence. Mr. Lopez admits that before trial he

asked counsel to interview and call his daughter to testify at trial about what she

witnessed. Thus, this claim was available at the time he filed his first § 2255

motion. Furthermore, the affidavit, when considered with the evidence as a

whole, would not establish by clear and convincing evidence that no reasonable

factfinder would have found Mr. Lopez guilty. On direct appeal, we recited

evidence that the juveniles agreed that Mr. Lopez had the tire iron and struck the

victim with it by throwing it at him or by hitting him with it, that Mr. Lopez told

the juveniles to tell police he had acted in self defense, that Mr. Lopez admitted

fighting with the victim and throwing a tire iron at him, that Mr. Lopez never

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claimed either juvenile killed or struck the victim with a tire iron, that no one else

picked up the tire iron after the victim was hit, and that Mr. Lopez was sorry he

killed the victim and did not mean to do so. Lopez, 252 F. App’x at 910-11,

912-13. Also, we determined that only minimal and conflicting evidence

supported his theory that a juvenile killed the victim. Id. at 913. The recent

vague and general affidavit of his daughter, considered along with the strong

evidence of his guilt, is insufficient to show that no reasonable factfinder would

have found him guilty of voluntary manslaughter if her testimony had been

presented. 

Accordingly, we DENY Mr. Lopez authorization to file a second or

successive § 2255 motion. This denial of authorization is not appealable and

“shall not be the subject of a petition for rehearing or for a writ of certiorari.” 

28 U.S.C. § 2244(b)(3)(E).

Entered for the Court,

ELISABETH A. SHUMAKER, Clerk

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