USA v. Cristobol Rodriguez-Marin

Filing

UNPUBLISHED OPINION ORDER FILED. [10-50268 Vacated and Remanded] Judge: WED , Judge: JES , Judge: LHS. Mandate pull date is 02/11/2011; granting motion to proceed IFP filed by Appellant Mr. Cristobol Rodriguez-Marin [6573702-2]; granting in part and denying in part motion for certificate of appealability filed by Appellant Mr. Cristobol Rodriguez-Marin [6573728-2] [10-50268]

USA v. Cristobol Rodriguez-Marin Case: 10-50268

Document: 00511328929 Page: 1 Date Filed: 12/21/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-50268 S u m m a r y Calendar December 21, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e , versu s C R I S T O B O L RODRIGUEZ-MARIN, Also Known as Cristobol Marin-Rodriguez, D e fe n d a n t -A p p e lla n t .

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 6:08-CV-370

B e fo r e DAVIS, SMITH, and SOUTHWICK, Circuit Judges. P E R CURIAM:* C r is t o b o l Rodriguez-Marin, federal prisoner # 56790-180, seeks a certific a t e of appealability ("COA") to appeal the denial of his 28 U.S.C. § 2255 motion. He is incarcerated for his conviction of aiding and abetting Lizandro GonzalezPursuant 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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Case: 10-50268 Document: 00511328929 Page: 2 Date Filed: 12/21/2010 No. 10-50268 R o d r ig u e z 's possession with intent to distribute at least 500 grams of methamp h e ta m in e . T o obtain a COA, Rodriguez-Marin must make "a substantial showing of t h e denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To meet that stand a r d , he must demonstrate that "reasonable jurists could debate whether (or, for t h a t matter, agree that) the [§ 2255 motion] should have been resolved in a diffe r e n t manner or that the issues presented were adequate to deserve encouragem e n t to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000). The C O A determination requires an overview of the claims and a general assessment o f their merits. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). That threshold in q u ir y does not require a showing that the appeal will succeed. Id. R o d r ig u e z -M a r in argues, as he did in the district court, that counsel was in e ffe c t iv e for failing to call Gonzalez-Rodriguez as a witness during his trial and t h a t Gonzalez-Rodriguez was available and willing to testify that RodriguezM a r in was not involved in the offense. To support his claim, he presented the d is t r ic t court with an unsworn letter from Gonzalez-Rodriguez that was written in Spanish. The letter, which was allegedly translated into English by GonzalezR o d r ig u e z 's counsel, purportedly states that Rodriguez-Marin had nothing to do w it h the offense. Rodriguez-Marin also provided the court with a portion of the transcript from Gonzalez-Rodriguez's sentencing proceeding, during which Gonzalez-Rodrig u e z stated that Rodriguez-Marin had nothing to do with the offense. Rodrig u e z -M a r in also argues, as he did in the district court, that counsel was ineffect iv e for failing to raise a Fourth Amendment objection to the drug evidence and fo r failing to raise a Fourth Amendment claim on appeal. Rodriguez-Marin has abandoned his claims before the district court of a c t u a l innocence, that the search and seizure of the vehicle that led to his arrest v io la t e d the Fourth Amendment, that the government failed to prove the drug q u a n t it y , and that counsel's failure to raise the drug quantity issue on direct ap2

Case: 10-50268 Document: 00511328929 Page: 3 Date Filed: 12/21/2010 No. 10-50268 p e a l was plain error. See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999); Y o h e y v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). By failing to challenge t h e district court's determination that Gonzalez-Rodriguez's letter was inadmiss ib le hearsay, Rodriguez-Marin has abandoned any challenge to the denial of § 2255 relief on his claim that counsel was ineffective for failing to introduce the le t t e r at trial. See Hughes, 191 F.3d at 613; Yohey, 985 F.2d at 224-25. B e c a u s e Gonzalez-Rodriguez's purported testimony would have been relev a n t to and supportive of Rodriguez-Marin's defense that he did not actually or c o n s t r u c t iv e ly possess the drugs recovered on the day of his arrest, reasonable ju r is t s could agree that the issue of whether counsel was ineffective for failing t o call Gonzalez-Rodriguez as a witness at trial is "adequate to deserve encoura g e m e n t to proceed further." Slack, 529 U.S. at 484. Accordingly, a COA is G R A N T E D in part on that issue. Because the government was not served in the u n d e r ly in g § 2255 proceeding and because the district court did not expressly a d d r e s s Rodriguez-Marin's claim that counsel was ineffective for failing to call G o n z a le z -R o d r ig u e z as a witness, we vacate the judgment to the extent it denied § 2255 relief on that claim and remand for consideration of the issue and, if nece s s a r y , an evidentiary hearing. See Whitehead v. Johnson, 157 F.3d 384, 388 (5 t h Cir. 1998). T h e district court did not address Rodriguez-Marin's claim that counsel w a s ineffective for failing to raise a Fourth Amendment claim before, during, or a ft e r trial and on direct appeal. A COA is also GRANTED in part on that issue. See United States v. Daly, 823 F.2d 871, 872 (5th Cir. 1987). On remand, therefo r e , the district court also should consider the issue of whether counsel was ineffe c t iv e for failing to raise a Fourth Amendment claim. Rodriguez-Marin's motion fo r a COA is DENIED in all other respects. His motion for leave to proceed in f o r m a pauperis on appeal is GRANTED. We express no opinion on what decis io n s the district court should make on remand.

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