United States v. Hector Saldivar

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 18-10637

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

HECTOR SALDIVAR,

Defendant-Appellant

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:18-CV-275

Before HIGGINBOTHAM, SOUTHWICK, and WILLETT, Circuit Judges.
PER CURIAM:
*
We withdraw the opinion issued on June 18, 2020, and substitute the
following for it.
A jury convicted Hector Saldivar, federal prisoner # 53912-177, of
conspiracy to possess with intent to distribute 50 grams or more of a mixture
or substance containing a detectable amount of methamphetamine. Saldivar
seeks a certificate of appealability (COA) to appeal the dismissal of his 28
U.S.C. § 2255 motion asserting ineffective assistance of counsel, and he seeks

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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 24, 2020

Lyle W. Cayce
Clerk
Case: 18-10637 Document: 00515465287 Page: 1 Date Filed: 06/24/2020

No. 18-10637
2
a COA to challenge the denial of his Federal Rule of Civil Procedure 59(e)
motion for relief from the judgment of dismissal. “[A] substantial showing of
the denial of a constitutional right” must be made in order for a COA to issue.
§ 2253(c)(2); see Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Saldivar will
meet this standard if he shows “that jurists of reason could disagree with the
district court’s resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve encouragement to
proceed further.” Buck v. Davis, 137 S. Ct. 759, 773 (2017) (internal quotation
marks and citation omitted). Conclusory assertions form no basis for § 2255
relief. See Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983).
Saldivar’s argument concerning the judgment of dismissal is entirely
conclusory and therefore ineffectual. See id.; see also Henderson v. Cockrell,
333 F.3d 592, 605 (5th Cir. 2003). Therefore, as no jurists of reason could
conclude this claim deserves encouragement to proceed further, a COA on the
claim is DENIED. See Buck, 137 S. Ct. at 773.
Saldivar has waived his claim regarding the denial of his Rule 59(e)
motion by failing to brief it meaningfully. See McGowen v. Thaler, 675 F.3d
482, 497-98 (5th Cir. 2012). Because Saldivar fails to show error in the district
court’s analysis, it is as though he has not appealed. See Brinkmann v. Dallas
Cty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Consequently, a
COA is DENIED, as no jurists of reason could conclude this claim deserves
encouragement to proceed further. See Buck, 137 S. Ct. at 773, 777.
Saldivar contends that the district court erred by denying his Rule 60(b)
motion without an evidentiary hearing. He is not required to obtain a COA to
appeal the denial of an evidentiary hearing; therefore, to the extent that he
seeks a COA on this issue, we construe his COA request “as a direct appeal
from the denial of an evidentiary hearing.” Norman v. Stephens, 817 F.3d 226,
Case: 18-10637 Document: 00515465287 Page: 2 Date Filed: 06/24/2020

No. 18-10637
3
234 (5th Cir. 2016). Review is for plain error because Saldivar could have
raised this issue in the district court but did not. See Puckett v. United States,
556 U.S. 129, 136 (2009).
An evidentiary hearing is required “[u]nless the motion and the files and
records of the case conclusively show that the prisoner is entitled to no relief.”
§ 2255(b). “Conclusory allegations, unsubstantiated by evidence, do not
support [a] request for an evidentiary hearing.” United States v. Reed,
719 F.3d 369, 373 (5th Cir. 2013). “A defendant is entitled to an evidentiary
hearing on his § 2255 motion only if he presents independent indicia of the
likely merit of his allegations.” Id. (internal quotation marks, brackets, and
citation omitted). Saldivar has not presented such indicia. Therefore, he fails
to show plain error in the implicit denial of an evidentiary hearing because he
cannot “demonstrate any error at all.” United States v. Teuschler, 689 F.3d
397, 400 (5th Cir. 2012); see Reed, 719 F.3d at 373. Consequently, the district
court’s judgment is AFFIRMED as to the lack of an evidentiary hearing.

Case: 18-10637 Document: 00515465287 Page: 3 Date Filed: 06/24/2020