United States v. Rafael Rivas-Lopez

Case: 15-20413 Document: 00513516341 Page: 1 Date Filed: 05/23/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-20413 FILED
May 23, 2016
UNITED STATES OF AMERICA, Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
RAFAEL E. RIVAS-LOPEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:09-CV-3335
USDC No. 4:04-CR-145-2
Before CLEMENT, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Rafael E. Rivas-Lopez, federal prisoner # 16285-179, requests a
certificate of appealability (COA) so that he may appeal the district court’s
dismissal of his 28 U.S.C. § 2255 motion. His request to supplement his COA
motion and his motion to proceed in forma pauperis are GRANTED.
In 2012, we remanded the case to the district court and ordered it to hold
an evidentiary hearing on Rivas-Lopez’s claim that he received ineffective
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 15-20413 Document: 00513516341 Page: 2 Date Filed: 05/23/2016
No. 15-20413
assistance of counsel during the plea negotiating stage of his criminal
proceedings. Rivas-Lopez now challenges the district court’s failure to appoint
counsel to represent him at that hearing. Rule 8(c) of the Rules Governing
§ 2255 Proceedings required the district court to appoint Rivas-Lopez counsel
for the evidentiary hearing because Rivas-Lopez was unable to afford retained
counsel. See United States v. Vasquez, 7 F.3d 81, 84 (5th Cir. 1993). Rivas-
Lopez’s motion for a COA is therefore GRANTED. The district court’s
judgment is VACATED, and the case is REMANDED for a new evidentiary
hearing with appointed counsel. Rivas-Lopez’s motion for the preparation of a
transcript at the Government’s expense is DENIED.
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