United States v. Ortiz

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-10815

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

RANDY FLORES ORTIZ, also known as Randy Flores-Ortiz, also known as
Blue,

Defendant-Appellant

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:18-CV-43
USDC No. 6:17-CR-16-1

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

Randy Flores Ortiz, federal prisoner # 55653-177, pleaded guilty to
possessing methamphetamine with the intent to distribute and was sentenced
to 327 months of imprisonment. The district court denied his 28 U.S.C. § 2255

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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
July 16, 2020

Lyle W. Cayce
Clerk
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No. 19-10815
2
motion on the merits without holding an evidentiary hearing. Ortiz now seeks
a certificate of appealability (COA).
If his motion is liberally construed, Ortiz renews his claims that his due
process rights were violated when he was not provided with a copy of the
presentence report (PSR) until the day before sentencing, depriving him of the
opportunity to prepare objections, that trial counsel was ineffective for failing
to challenge the sentencing enhancement he received for possession of a
firearm, for failing to provide him with the PSR earlier, and for inducing his
guilty plea with the promise of a 15-to-17-year sentence, and that appellate
counsel was ineffective for filing an Anders
1
brief instead of raising these
arguments on appeal.
This court will grant a COA, which is required to appeal, only when the
movant “has made 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). For claims denied on the merits, Ortiz must establish that reasonable
jurists would find the decision to deny relief debatable or wrong, see Slack, 529
U.S. at 484, or that the issue he presents deserves encouragement to proceed
further, see Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). For claims denied
on procedural grounds, he must show “that jurists of reason would find it
debatable whether the [application] 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.” Slack, 529 U.S. at 484.
Ortiz has not made the requisite showing, and his motion for a COA is
denied. See id. His motion for leave to proceed in forma pauperis (IFP) on
appeal is likewise denied.

1
Anders v. California, 386 U.S. 738 (1967).
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No. 19-10815
3
We construe the motion for a COA with respect to the district court’s
failure to hold an evidentiary hearing as a direct appeal of that issue, see
Norman v. Stephens, 817 F.3d 226, 234 (5th Cir. 2016), and affirm.
COA DENIED; IFP DENIED; AFFIRMED.
Case: 19-10815 Document: 00515492353 Page: 3 Date Filed: 07/16/2020