Gustavo Lopez v. J. Salazar

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 22, 2019
• Docket: 18-16503
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 22 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

GUSTAVO COLIN LOPEZ, No. 18-16503

Petitioner-Appellant, D.C. No. 2:15-cv-01092-KJM-KJN

v. MEMORANDUM* J. SALAZAR,

Respondent-Appellee.

Appeal from the United States District Court for the Eastern District of California Kimberly J. Mueller, District Judge, Presiding

Submitted November 18, 2019**

Before: CANBY, TASHIMA, and CHRISTEN, Circuit Judges.

Federal prisoner Gustavo Colin Lopez appeals pro se from the district

court’s denial of his 28 U.S.C. § 2241 habeas corpus petition. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo, see Lane v. Swain, 910

F.3d 1293, 1295 (9th Cir. 2018), and we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Lopez contends that his return to federal custody violates his due process

rights because the government has waived and is estopped from executing his 180-

month sentence. The totality of the circumstances does not support relief under

either waiver or estoppel. See United States v. Martinez, 837 F.2d 861, 864 (9th

Cir. 1988). The government did not waive the right to enforce Lopez’s sentence

because its actions were not “so affirmatively improper or grossly negligent that it

would be unequivocally inconsistent with fundamental principles of liberty and

justice” to require Lopez to serve his sentence. See also Green v. Christiansen,

732 F.2d 1397, 1399 (9th Cir. 1984) (internal quotation marks omitted) (failure to

lodge a detainer is a ministerial mistake that does not constitute waiver). Nor is the

government estopped from enforcing the sentence: Lopez was aware of the

undischarged sentence, and the government neither intended to excuse the sentence

nor so misled Lopez that he had a right to believe that the government intended to

excuse the sentence. See id.

We do not consider Lopez’s argument that his right to counsel was violated

because it was raised for the first time on appeal. See Smith v. Marsh, 194 F.3d

1045, 1052 (9th Cir. 1999).

AFFIRMED.

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