United States v. Chavez

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-50264
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

OMAR CHAVEZ, also known as Hector Manuel Martinez-Balderas,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:18-CV-834
USDC No. 5:16-CR-358-1

Before: HIGGINBOTHAM, SOUTHWICK, and WILLET, Circuit Judges.

PER CURIAM:
*

Omar Chavez, federal prisoner # 52414-280, moves for a certificate of
appealability (COA) to appeal the denial of his 28 U.S.C. § 2255 motion
challenging his conviction and sentence for conspiracy to possess
methamphetamine with intent to distribute. He also seeks leave to proceed in
forma pauperis (IFP) on appeal. Chavez contends that (1) he did not validly
waive his right to collaterally challenge his sentence; (2) the Government

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5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
April 1, 2020

Lyle W. Cayce
Clerk
Case: 19-50264 Document: 00515368506 Page: 1 Date Filed: 04/01/2020

No. 19-50264
2
breached the plea agreement; (3) the district court erred by denying § 2255
relief without an evidentiary hearing; and (4) he received ineffective assistance
of counsel.
To obtain a COA, Chavez must make “a substantial showing of the denial
of a constitutional right,” 28 U.S.C. § 2253(c)(2), by “showing that reasonable
jurists could debate whether (or, for that matter, agree that) the [motion]
should have been resolved in a different manner or that the issues presented
were adequate to deserve encouragement to proceed further,” Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks and citation
omitted); see 28 U.S.C. § 2253(c)(2). To meet that burden, he must show that
“reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack, 529 U.S. at 484.
With respect to his claims of invalid waiver, breach of the plea
agreement, and ineffective assistance of counsel, Chavez fails to make the
required showing to obtain a COA, and the motion for a COA is denied. We
construe Chavez’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. Finally, because
Chavez has not shown that his appeal will raise legal points arguable on their
merits, we deny the motion to proceed IFP. See Howard v. King, 707 F.2d 215,
220 (5th Cir. 1983).
COA DENIED; JUDGMENT AFFIRMED; MOTION FOR LEAVE TO
APPEAL IFP DENIED.

Case: 19-50264 Document: 00515368506 Page: 2 Date Filed: 04/01/2020