Gustavo Colin Lopez v. J. Salazar

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GUSTAVO COLIN LOPEZ,
Petitioner-Appellant,
v.
J. SALAZAR,
Respondent-Appellee.
No. 18-16503
D.C. No. 2:15-cv-01092-KJM-KJN
MEMORANDUM*
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).
FILED
NOV 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 18-16503
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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