Carvajal

Filing 20

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 1 Petition for Writ of Habeas Corpus filed by Jaime Alvar Carvajal. It is accordingly recommended that Movant's motion for relief under 28 USC 2255 be denied and the case dismissed with prejudice. It is further recommended that a certificate of appealability be denied. Signed by Magistrate Judge Don D. Bush on 8/16/2012. (kls, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

JAIME ALVAR CARVAJAL

§

VS.

§

UNITED STATES OF AMERICA

§

CIVIL ACTION NO. 4:09cv222
CRIM NO. 4:03cr109(4)

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Movant Jaime Alvar Carvajal, a federal prisoner proceeding with the assistance of counsel,
filed the above-styled and numbered motion to vacate, set aside or correct his sentence pursuant to
28 U.S.C. § 2255.

The motion was referred for findings of fact, conclusions of law and

recommendations for the disposition of the case.
Background
On March 16, 2004, a jury found Movant guilty of the offenses of conspiracy to manufacture,
distribute or possess with intent to manufacture, distribute, or dispense 3,4 methylenedioxymethamphetamine (Ecstasy), methylenedioxy-methylamphtamine (MDMA), methamphetamine,
cocaine, and marijuana, as well as aiding and abetting, in violation of 21 U.S.C. § 846 and 18 U.S.C.
§ 2, respectively. The Court sentenced him to 262 months’ imprisonment. On November 22, 2006,
the Fifth Circuit Court of Appeals affirmed Movant’s conviction, United States v. Carvajal, 206 Fed
Appx. 391 (5th Cir. 2006), but remanded for re-sentencing pursuant to Booker. United States v.

1

Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed.2d 621 (2005). On April 23, 2007, the Court resentenced Movant to 210 months’ imprisonment. On February 12, 2008, the Fifth Circuit Court of
Appeals affirmed Movant’s sentence.
In the present § 2255 motion, Movant asserts he is entitled to relief based on numerous
claims of ineffective assistance of counsel and because his right to a speedy trial was violated. The
Government filed a Response, asserting that Movant’s issues are without merit. Movant filed a
Reply.
Statement of Facts
The Fifth Circuit Court of Appeals summarized the facts of the case in its opinion:
Beginning in 2001, the Drug Enforcement Administration (DEA) began investigating
possible drug trafficking in Dallas, Texas, based on the information of Keith Bridger,
a friend of Carvajal’s who became a DEA informant based on a desire to “get out”
of the drug scene. Bridger specifically provided information to the DEA about a drug
dealer named Agron Perkovic. Because he knew that Carvajal was involved with
Perkovic, Bridger urged his friend to cooperate with the investigation in order to
protect himself from criminal charges.
Carvajal met with DEA agents at least twice, and the agents asked Carvajal to
contact them if he had any useful information, although the agents later testified that
they did not believe Carvajal was being truthful with them. Based on the arrests of
Perkovic and others resulting from Bridger's information, it became obvious to the
DEA that Carvajal was a major participant in the same drug ring as Perkovic,
especially after Perkovic sold Carvajal 1000 ecstasy pills the day before Perkovic's
arrest. Carvajal supplied Perkovic with methamphetamine, cocaine, and marijuana
during 2001 and 2002. Other witnesses testified extensively about drug deals with
Carvajal as well.
During this same time period, Carvajal was receiving shipments of drugs transported
by Michael Shawn Mayes. Mayes was arrested near San Antonio, Texas, in
September of 2002 while transporting 40 pounds of marijuana from McAllen, Texas,
to Dallas, Texas, allegedly for Carvajal. In cooperation with Texas authorities, Mayes
called Carvajal after he was arrested to talk about the delivery of the marijuana.
During this conversation, which was recorded, Carvajal stated that he owned the
marijuana and that he was “the backbone of this organization.” At issue in part in this
2

appeal is the extent to which these events are connected to the charged conspiracy.
While the investigation of Carvajal was ongoing in the Eastern District of Texas,
another investigation related to his dealings with Mayes was ongoing in the Southern
District of Texas. On June 12, 2003, Carvajal and nine other defendants were
indicted in the Eastern District on charges of being involved in a conspiracy related
to illegal substances. Two months later, Carvajal was separately indicted in the
Southern District for the events related to Mayes's transport of marijuana.
Seven of the defendants in the Eastern District case pleaded guilty, but Carvajal did
not and was convicted by a jury on March 16, 2004. The government moved to admit
at trial in the Eastern District evidence, including a tape-recorded conversation
between Mayes and Carvajal, a transcript of that conversation, and the thirty-eight
pounds of marijuana that Mayes was transporting (“Mayes evidence”), that was the
subject of the indictment in the Southern District. The government argued that the
Mayes evidence was evidence of the conspiracy charged in the Eastern District.
Carvajal objected, arguing that the evidence was extrinsic evidence not allowed
under FED.R.EVID. 404(b). The district court admitted the evidence because the
indictment covered the years 1999–2003 and mentioned Carvajal’s activities with
“others unknown” to the grand jury.
In addition to the recording of Carvajal’s conversation with Mayes, the government
also produced many witnesses against Carvajal, including Bridger and Perkovic.
These witnesses implicated Carvajal in multiple drug transactions during the years
at issue in the indictment. Perkovic testified about his many transactions with
Carvajal involving marijuana, ecstasy, cocaine, and methamphetamine. Bridger
corroborated this testimony.
Carvajalwas convicted by the jury and sentenced by the district court under the
then-mandatory United States Sentencing Guidelines on November 4, 2004, to 262
months imprisonment, five years supervised release, and a $100 special assessment.
The indictment against Carvajal in the Southern District of Texas was dismissed after
his conviction in the Eastern District. Carvajal filed a timely appeal that was
dismissed for lack of prosecution. This court reinstated Carvajal's appeal on
September 29, 2005.

Carvajal, 206 Fed Appx 391, at 393.
Federal Habeas Corpus Relief
As a preliminary matter, it should be noted that a § 2255 motion is “fundamentally different

3

from a direct appeal.” United States v. Drobny, 955 F.2d 990, 994 (5th Cir. 1992). A movant in a
§ 2255 proceeding may not bring a broad based attack challenging the legality of the conviction. The
range of claims that may be raised in a § 2255 proceeding is narrow. A “distinction must be drawn
between constitutional or jurisdictional errors on the one hand, and mere errors of law on the other.”
United States v. Pierce, 959 F.2d 1297, 1300-1301 (5th Cir. 1992) (citations omitted). A collateral
attack is limited to alleging errors of “constitutional or jurisdictional magnitude.” United States v.
Shaid, 937 F.2d 228, 232 (5th Cir. 1991).
Procedurally Barred
Movant’s issue concerning a violation of his right to a speedy trial could have been raised
on direct appeal, but was not. Unconstitutional claims that could have been raised on direct appeal,
but were not, may not be asserted in collateral proceedings. United States v. Towe, 26 F.3d 614, 616
(5th Cir. 1994). Here, Movant could have raised this issue on direct appeal as the record was fully
developed, but chose not to do so. Thus, he is procedurally barred from asserting it in the instant
motion. Id. The record was sufficiently developed at trial for the appellate court to be able to make
a judgment. Movant did not raise the issue on appeal and he has failed to show cause or prejudice
for the default, other than making a bald assertion that his counsel was ineffective for failing to do
so. Id; United States v. Lopez, 248 F.3d 427, 433 (5th Cir. 2001) (defendant is barred from raising
claims in his § 2255 motion that he failed to raise on direct appeal unless he shows cause for the
omission and prejudice resulting therefrom); See Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir.
1983); Joseph v. Butler, 838 F.2d 786, 788 (5th Cir. 1988) (conclusory allegations and bald
assertions are insufficient to support the motion). Accordingly, this issue is procedurally barred.

4

Ineffective Assistance of Counsel - Trial and Appeal
Movant presents several issues asserting he is entitled relief due to the ineffectiveness of both
his trial and appellate counsel.
Legal Standard
A movant who seeks to overturn his conviction on the grounds of ineffective assistance of
counsel must prove his entitlement to relief by a preponderance of the evidence. James v. Cain, 56
F.3d 662, 667 (5th Cir. 1995). In order to succeed on a claim of ineffective assistance of counsel, a
movant must show that “counsel’s representation fell below an objective standard of
reasonableness,” with reasonableness judged under professional norms prevailing at the time counsel
rendered assistance. Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2065, 80 L.
Ed.2d 864 (1984). The standard requires the reviewing court to give great deference to counsel’s
performance, strongly presuming counsel exercised reasonable professional judgment. 466 U.S. at
690, 104 S. Ct. at 2066. The right to counsel does not require errorless counsel; instead, a criminal
defendant is entitled to reasonably effective assistance. Boyd v. Estelle, 661 F.2d 388, 389 (5th Cir.
1981). See also Rubio v. Estelle, 689 F.2d 533, 535 (5th Cir. 1982); Murray v. Maggio, 736 F.2d
279 (5th Cir. 1984). Secondly, the movant “must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Movant must “affirmatively prove,” not just allege,
prejudice. Id., 466 U.S. at 693, 104 S. Ct. at 2067. If he fails to prove the prejudice component, the
court need not address the question of counsel's performance. Id., 466 U.S. at 697, 104 S. Ct. 2052.
The Fifth Circuit has held that to prevail on a claim of ineffective assistance of counsel on
5

appeal, the petitioner must make a showing that had counsel performed differently, there would have
been revealed issues and arguments of merit on the appeal. Sharp v. Puckett, 930 F.2d 450, 453 (5th
Cir. 1991), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2065, 80 L. Ed.2d
864 (1984). In a counseled appeal after conviction, the key is whether the failure to raise an issue
worked to the prejudice of the defendant. Sharp, 930 F.2d at 453. This standard has been affirmed
by the Supreme Court. See Smith v. Robbins, 528 U.S. 259, 285, 120 S. Ct. 746, 764, 145 L. Ed.2d
756 (2000) (holding that the petitioner must first show that his appellate attorney was objectively
unreasonable in failing to find arguable issues to appeal, and also a reasonable probability that, but
for his counsel’s unreasonable failure to file a merits brief raising these issues, he would have
prevailed on his appeal). See also Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L. Ed.2d
389 (2000); Briseno v. Cockrell, 274 F.3d 204, 207 (5th Cir. 2001).
Furthermore, an appellate counsel’s failure to raise certain issues on appeal does not deprive
an appellant of effective assistance of counsel where the petitioner did not show trial errors with
arguable merit. Hooks v. Roberts, 480 F.2d 1196, 1198 (5th Cir. 1973). Appellate counsel is not
required to consult with his client concerning the legal issues to be presented on appeal. Id. at 1197.
An appellate attorney’s duty is to choose among potential issues, using professional judgment as to
their merits – every conceivable issue need not be raised on appeal. Jones v. Barnes, 463 U.S. 745,
749, 103 S. Ct. 3308, 3311-12, 77 L. Ed.2d 987 (1983).
Failure to Pursue the Right to a Speedy Trial
Movant complains that both his trial counsel and his appellate counsel failed to pursue his
right to a speedy trial. The Speedy Trial Act requires that federal criminal defendants be tried within
seventy non-excludable days from the filing date of the indictment or from the date of the
6

defendant’s initial appearance before a judicial officer, whichever occurs later. 18 U.S.C. § 3161
( c) (1); United States v. Willis, 958 F.2d 60, 62 (5th Cir. 1992). The Act, however, specifies that
certain days are to be “excluded” from the 70-day calculation. 18 U.S.C. § 3161 (h) (1); United
States v. Gonzales, 897 F.2d 1312, 1315 (5th Cir. 1990). When analyzing a violation of the right to
a speedy trial, the Court considers (1) the length of delay, (2) the reason for the delay, (3) defendant’s
assertion of the right to a speedy trial, and (4) the prejudice resulting from the delay. Barker v.
Wingo, 407 U.S. 514, 531-33, 92 S. Ct. 2183, 2192-93, 33 L. Ed.2d 101 (1972).
A Barker analysis is not necessary here because in a multi-defendant prosecution, such as in
this case, the Speedy Trial clock begins to run when the last co-defendant makes his initial
appearance in court. See United States v. Bermea, 30 F.3d 1539, 1567 (5th Cir. 1994), cert. denied
Rodriguez v. United States, 513 U.S. 1156, 115 S. Ct. 1113, 130 L. Ed.2d 1077 (1995). Here,
Movant’s co-defendant, John Tarzhi, made his initial appearance on January 21, 2004.
Consequently, the Speedy Trial clock for Movant’s claim did not start until January 21, 2004. There
were only 40 days from January 21, 2004 until Movant’s trial date of March 1, 2004. Thus, the
Court did not violate the 70-day time period required by the Speedy Trial Act. Accordingly, neither
trial counsel nor appellate counsel can be found ineffective for failing to pursue this claim. See
Emery v. Johnson, 139 F.3d 191, 198 (5th Cir. 1997) (a futile or meritless objection cannot be
grounds for a finding of deficient performance). “Failure to raise meritless objections is not
ineffective lawyering; it is the very opposite.” Clark v. Collins, 19 F.3d 959, 966 (5th Cir. 1994).
Movant has neither shown deficient performance nor has he shown that there is a reasonable
probability that, but for counsel’s alleged unprofessional errors, the result of the proceeding would
have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. He also has not shown that,
7

had appellate counsel raised the issue on appeal, he would have prevailed. Sharp, 930 F.2d at 453.
Trial Counsel Robert Jarvis
Movant asserts that he is entitled to relief because trial counsel Jarvis1 failed to investigate,
failed to call numerous witnesses, failed to adequately pursue a plea bargain, and failed to obtain
evidence for use in his defense.
A defendant who alleges a failure to investigate must allege with specificity what the
investigation would have revealed and how it would have altered the outcome of the trial. Gray v.
Lucas, 677 F.2d 1086, 1093 (5th Cir. 1982). Here, Movant has presented nothing but a conclusory
claim that counsel failed to investigate. Conclusory claims are insufficient to entitle a habeas corpus
petitioner to relief. United States v. Woods, 870 F.2d 285, 288 (5th Cir. 1989); Schlang v. Heard, 691
F.2d 796, 7 99 (5th Cir. 1982). On the other hand, Jarvis states in his affidavit that he spent more
than 600 hours preparing for trial, and his legal assistant spent much time on the case, as well as an
investigator hired for Movant’s defense. He noted that he was able to attack many of the
Government’s specific dates through evidence obtained. Movant has not met his burden – he has
neither shown deficient performance nor prejudice. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
Furthermore, as it concerns counsel’s failure to call certain witnesses, Jarvis stated in his
affidavit that he called all the witnesses he believed had relevant information for the jury to hear.

1

Jarvis ultimately represented Movant at trial. However, as will be discussed below, Bruce
Anton was initially retained by Movant. Anton then referred Movant to Gary Udashen, after
discovering a conflict of interest. The Court allowed Anton to withdraw and substituted Udashen
as counsel on July 23, 2003. On October 10, 2003, Udashen was allowed to withdraw when Movant
wished to retain Jarvis.

8

“[C]omplaints of uncalled witnesses are not favored, because the presentation of testimonial
evidence is a matter of trial strategy and because allegations of what a witness would have testified
are largely speculative.” Buckelew v. United States, 575 F.2d 515, 521 (5th Cir.1978). Further, the
presentation of witness testimony is essentially strategy and, thus, within the trial counsel’s domain.
Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir.1985). A petitioner must overcome a strong
presumption that his counsel’s decision in not calling a particular witness was a strategic one.
Murray v. Maggio, Jr., 736 F.2d 279, 282 (5th Cir. 1984). Where “the only evidence of a missing
witness's testimony is from the defendant,” claims of ineffective assistance are viewed with great
caution. United States v. Cockrell, 720 F.2d 1423, 1427 (5th Cir.1983), cert. denied, 467 U.S. 1251,
104 S. Ct. 3534, 82 L. Ed.2d 839 (1984). Moreover, to succeed on the claim, Petitioner must have
shown that had counsel investigated, he would have found witnesses to support the defense, that such
witnesses were available, and had counsel located and called these witnesses, their testimony would
have been favorable and they would have been willing to testify on Petitioner’s behalf. Alexander,
775 F.2d at 602; Gomez v. McKaskle, 734 F.2d 1107, 1109-10 (5th Cir. 1984), cert. den., 469 U.S.
1041 (1984). Conclusory claims are insufficient to entitle a habeas corpus petitioner to relief.
United States v. Woods, 870 F.2d 285, 288 (5th Cir. 1989); Schlang v. Heard, 691 F.2d 796, 799 (5th
Cir. 1982).
Movant has presented no evidence showing that any individual from his long list of potential
witnesses was willing and able to testify on his behalf. Further, he has provided no evidence
showing what the substance of their testimony would have been. Alexander, 775 F.2d at 602;
Gomez v. McKaskle, 734 F.2d at 1109-10. He also has not shown that the decision not to call the
witnesses was not trial strategy. Conclusory claims are insufficient to entitle a habeas corpus
9

petitioner to relief. Woods, 870 F.2d at 288; Schlang, 691 F.2d at 799. Unsupported assertions are
not sufficient to overcome the strong presumption that the decision to not call the witnesses was not
a trial strategy. Alexander, 775 F.2d at 602; Murray, 736 F.2d at 282.
Furthermore, Movant has presented only his conclusory allegation that trial counsel failed
to adequately pursue a plea bargain or that he failed to obtain trial evidence for his defense. Habeas
corpus relief will not be granted based on conclusory claims. Woods, 870 F.2d at 288; Schlang, 691
F.2d at 799. Movant has failed to allege with specificity what further investigation would have
revealed and how it would have altered the outcome of the trial. Gray, 677 F.2d at 1093. He has
failed to show deficient performance or prejudice. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
Pre-Trial Counsel Bruce Anton
Movant also claims that Anton was ineffective because of a conflict of interest. Anton was
originally retained to represent Movant. In response to Movant’s claims in the instant action, Anton
filed an affidavit. In it, he noted that he had represented Movant as far back as 1998 in state court
charges. He remembered that Movant referred Joel Keith Bridger to him for representation on state
charges as well. After learning some facts suggesting that Bridger might be an adverse witness in
Movant’s federal criminal case, Anton told this to Movant, explaining that he would be conflicted
from representing Movant or Bridger in federal litigation. Anton filed a motion to withdraw as
counsel, which was granted.
Movant also complains that Anton referred Gary Udashen to him. In response to Movant’s
complaints, Anton noted in his affidavit that he and Udashen are attorneys in an office sharing firm.
He noted that each attorney maintains their own private practices, separate and apart from other
attorneys in the office sharing firm. He also noted that Movant was aware of this since Movant and
10

his father met with Udashen at their offices when Anton first introduced them to Udashen. At that
time, Movant and his father were both informed that Anton could no longer have any contact on the
case. Anton further affirmed that no information concerning Movant’s case was ever conveyed to
Bridger.
To show ineffective assistance of counsel based on a conflict of interest arising from multiple
representation, a defendant must show that his counsel was acting under the influence of an actual
conflict that adversely affected representation. United States v. Culverhouse, 507 F.3d 888, 893 (5th
Cir. 2007). Multiple representation does not necessarily create an actual conflict of interest for
ineffective claims. Id. However, there is an actual conflict, for purposes of ineffective claims, when
the attorney knows that his client’s interests diverge and must then choose between the interests of
multiple clients, or be compelled to compromise his duty of loyalty. Id. A conflict of interest must
be actual, rather than potential or speculative, to violate Sixth Amendment Standards. Mitchell v.
Maggio, 679 F.2d 77, 78-79 (5th Cir. 1982). A claim of conflict of interest must normally be
analyzed as an ineffective assistance of counsel claim, as developed by in Strickland, although a
more lenient standard applies when an attorney’s representation of multiple parties creates a conflict
of interest. Perillo v. Johnson, 79 F.3d 441, 447 (5th Cir. 1996) (citing Cuyler v. Sullivan, 446 U.S.
335, 100 S. Ct. 1708, 64 L. Ed.2d (1980)). To prevail on a Cuyler claim, a petitioner need only
show that his attorney labored under an actual conflict of interest that adversely affected his
counsel’s performance. Id. Cuyler is reserved for circumstances where counsel represents multiple
clients with conflicting interests. Lockhart v. Johnson, 104 F.3d 54, 58 (5th Cir. 1997).
Here, Movant points to no evidence from the record to suggest that Anton did not inform him
of the conflict of interest or that Anton actually acted under the influence of any actual conflict.
11

Anton states in his affidavit that he informed Movant of the conflict as soon as he became aware of
it, and referred Movant to different counsel. Anton also stated in his affidavit that Movant was not
honest with him concerning the charges, so he was unable to initially discover the alleged conflict.
The record shows, however, that Anton filed a motion to withdraw, which was granted. Movant has
not shown that counsel acted under an actual conflict, as counsel asked to be allowed to withdraw
from representation upon learning of Bridger’s potential involvement in the case. Cuyler, 446 U.S.
at 348, 100 S. Ct. at 1718; Culverhouse, 507 F.3d at 893.
Furthermore, Movant has presented only his conclusory allegation that trial counsel failed
to adequately pursue a plea bargain or that he failed to obtain trial evidence for his defense. Woods,
870 F.2d at 288; Schlang, 691 F.2d at 799. In his Reply, Movant presents as an attachment a letter
from Gary Udashen in which Udashen tells Movant’s father, “Pursuant to yours and Jaime’s request,
I have informed the U.S. Attorney that Jaime will not accept a plea agreement in this case.” It
appears that Movant was not interested in a plea agreement; thus, he cannot complain that his
attorney did not pursue a plea agreement. Furthermore, his complaint that his codefendants pleaded
guilty and received lighter sentences is without merit as Movant’s sentence was within the
guidelines. Since Movant did not plead guilty and took his changes at trial, he did not receive
acceptance of responsibility points as did his codefendants who pleaded guilty. United States v.
Gray, 565 F.2d 881, 892 (5th Cir. 1978). Movant has simply failed to show deficient performance
or prejudice. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
Conclusion
In each of his ineffective assistance of counsel claims, Movant has failed to show that there
is a reasonable probability that, but for counsel’s alleged unprofessional errors, the result of the
12

proceeding would have been different.

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. He has

also failed to show that counsel acted under an actual conflict, as counsel asked to be allowed to
withdraw from representation upon learning of Bridger’s involvement in the case. Cuyler, 446 U.S.
at 348, 100 S. Ct. at 1718; Culverhouse, 507 F.3d at 893. In sum, Movant has failed to show a
violation of a federal constitutional right. Lowery, 988 F.2d at 1367. Movant’s motion should be
denied.
Certificate of Appealability
An appeal may not be taken to the court of appeals from a final order in a proceeding under
§ 2255 “unless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C. §
2253(c)(1)(B). Although Movant has not yet filed a notice of appeal, it is respectfully recommended
that this Court, nonetheless, address whether he would be entitled to a certificate of appealability.
See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (A district court may sua sponte rule
on a certificate of appealability because “the district court that denies a [movant] relief is in the best
position to determine whether the [movant] has made a substantial showing of a denial of a
constitutional right on the issues before the court. Further briefing and argument on the very issues
the court has just ruled on would be repetitious.”).
A certificate of appealability may issue only if a movant has made a substantial showing of
the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained the
requirement associated with a “substantial showing of the denial of a constitutional right” in Slack
v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 1603-04, 146 L. Ed.2d 542 (2000). In cases where
a district court rejected constitutional claims on the merits, the movant must demonstrate “that
reasonable jurists would find the district court’s assessment of the constitutional claims debatable
13

or wrong.” Id.; Henry v. Cockrell, 327 F.3d 429, 431 (5th Cir. 2003). When a district court denies
a motion on procedural grounds without reaching the underlying constitutional claim, a COA should
issue when the movant shows, at least, that jurists of reason would find it debatable whether the
motion states a valid claim of the denial of a constitutional right and that jurists of reason would find
it debatable whether the district court was correct in its procedural ruling. Id.
In this case, it is respectfully recommended that reasonable jurists could not debate the denial
of Movant’s § 2255 motion on substantive or procedural grounds, nor find that the issues presented
are adequate to deserve encouragement to proceed. See Miller-El v. Cockrell, 537 U.S. 322, 336-37,
123 S. Ct. 1029, 1039, 154 L. Ed.2d 931 (2003) (citing Slack, 529 U.S. at 484, 120 S. Ct. at 1604).
Accordingly, it is respectfully recommended that the Court find that Movant is not entitled to a
certificate of appealability as to his claims.
Recommendation
It is accordingly recommended that Movant’s motion for relief under 28 U.S.C. § 2255 be
denied and the case dismissed with prejudice. It is further recommended that a certificate of
appealability be denied.
Within fourteen (14) days after receipt of the magistrate judge's report, any party may serve
and file written objections to the findings and recommendations contained in the report.
A party's failure to file written objections to the findings, conclusions and recommendations
contained in this Report within fourteen days after being served with a copy shall bar that party from
de novo review by the district judge of those findings, conclusions and recommendations and, except
on grounds of plain error, from appellate review of unobjected-to factual findings and legal
conclusions accepted and adopted by the district court. Douglass v. United Servs. Auto Ass'n, 79
14

F.3d 1415, 1430 (5th Cir. 1996) (en banc).
SIGNED this 16th day of August, 2012.
.

____________________________________
DON D. BUSH
UNITED STATES MAGISTRATE JUDGE

15