United States v. Barlow

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 18-30994

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

TRAVIS TRUMANE BARLOW,

Defendant-Appellant

Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:16-CV-845
USDC No. 3:13-CR-44-1

Before ELROD, HAYNES, and DUNCAN, Circuit Judges.
PER CURIAM:
*

Travis Trumane Barlow, federal prisoner # 06416-095, was convicted of
possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1)
and was sentenced within the guidelines range to 235 months of imprisonment
and two years of supervised release. Without holding a hearing, the district
court denied Barlow’s 28 U.S.C. § 2255 motion but granted him a certificate of
appealability (COA) to appeal the denial of his ineffective assistance of counsel

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
June 19, 2020

Lyle W. Cayce
Clerk
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No. 18-30994
2
claims. Barlow now moves this court for an expansion of the district court’s
COA order to include the following claims: whether his Fourth Amendment
challenge is barred from collateral review notwithstanding the Supreme
Court’s opinion in Byrd v. United States, 138 S. Ct. 1518 (2018); whether his
collateral-review waiver bars his challenge to his sentence under the Armed
Career Criminal Act (ACCA), 18 U.S.C. § 924(e); and, relatedly, whether his
sentence exceeds the 10-year statutory maximum because his prior Louisiana
drug convictions no longer qualify as serious drug offenses under the ACCA
after Mathis v. United States, 136 S. Ct. 2243 (2016).
This court reviews the request to expand the COA under the same
criteria that it uses to determine whether to issue a COA. United States v.
Kimler, 150 F.3d 429, 431 (5th Cir. 1998). Accordingly, this court will grant a
motion to expand the COA if the movant makes “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Slack v. McDaniel,
529 U.S. 473, 483-84 (2000). When a district court has rejected a constitutional
claim on the merits, the movant must “demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional claims
debatable or wrong.” Slack, 529 U.S. at 484. When a district court has rejected
a claim on procedural grounds, the movant must show that “jurists of reason
would find it debatable whether the petition 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.
We GRANT Barlow’s motion to expand the COA, in part, as reasonable
jurists would find it debatable whether the collateral-review waiver bars his
claim that his sentence under the ACCA exceeds the statutory mandatory
minimum term of imprisonment. The COA grant is made without any view of
the ultimate merit of his underlying ACCA claim. See Houser v. Dretke, 395
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No. 18-30994
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F.3d 560, 561-62 (5th Cir. 2004). However, we DENY his motion to expand the
COA as to all other issues, as he has not made the showing required to obtain
a COA with respect to those claims. See Slack, 589 U.S. at 484.
Insofar as Barlow alleges that the factual basis was insufficient to
support his Louisiana convictions, we do not consider that claim as it was
raised for the first time here. See Henderson v. Cockrell, 333 F.3d 592, 605
(5th Cir. 2003). We also do not address Barlow’s argument that offenses
involving small amounts of marijuana cannot be used for enhancement
purposes in light of Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), which was
first raised in his post-judgment motion from which he did not timely appeal.
See Bowles v. Russell, 551 U.S. 205, 214 (2007); F
ED. R. APP. P. 4(a)(4)(B)(ii).
We construe Barlow’s motion for a COA with respect to the district
court’s denial of an evidentiary hearing as a direct appeal of that issue, see
Norman v. Stephens, 817 F.3d 226, 234 (5th Cir. 2016), and affirm.
Accordingly, the motion to expand a COA is GRANTED IN PART and
DENIED IN PART; the denial of an evidentiary hearing is AFFIRMED. The
clerk is DIRECTED to establish a briefing schedule, notify the respondent that
a COA has been granted, and include the respondent in the briefing schedule.
Case: 18-30994 Document: 00515458095 Page: 3 Date Filed: 06/19/2020