United States v. Morales-Cantu ( 1995 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-50385
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HOMERO MORALES-CANTU,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. DR-94-CA-62
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(October 17, 1995)
Before JOLLY, JONES, and STEWART, Circuit Judges.
PER CURIAM:*
Homero Morales-Cantu moves for leave to proceed in forma
pauperis (IFP) to appeal the district court's denial of his
motion filed pursuant to 28 U.S.C. § 2255. Morales has
established that he is a pauper. He must also show that his
appeal presents a nonfrivolous issue. Carson v. Polley, 689 F.2d
562, 586 (5th Cir. 1982).
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
No. 95-50385
-2-
After Morales filed objections to the magistrate judge's
report and before the district court denied relief, Morales filed
a Motion for Leave to Add Ground Number Seven, which is a motion
to amend his § 2255 motion to add a double jeopardy claim and
related ineffectiveness of counsel claims. The district court
did not address those claims and did not rule on the motion to
amend.
By neither granting nor denying leave to amend and not
addressing the claims made in the proposed amendment, the
district court effectively denied Morales leave to amend. We
review a denial of leave to amend for abuse of discretion. Ashe
v. Corley, 992 F.2d 540, 542 (5th Cir. 1993).
Leave to amend is to be freely granted when the interests of
justice require. Ashe, 992 F.2d at 542; Fed. R. Civ. P. 15(a).
In deciding whether to grant leave to amend, the district court
may consider many factors. Ashe, 992 F.2d at 542. The district
court should state its reasons for denying leave. In the absence
of stated reasons, affirmance is possible if the district court's
reasons are apparent. Id. at 542-43. In the instant case, the
district court effectively denied leave to amend, and no reasons
are apparent in the record.
In the proposed amendment, Morales alleged a violation of
the Double Jeopardy Clause. As Morales presented little
information and the district court did not address the issue, we
cannot determine whether Morales has a meritorious double
jeopardy claim. See United States v. Arreola-Ramos, 60 F.3d 188,
No. 95-50385
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191-93 (5th Cir. 1995). Morales's challenge to the effective
denial of the motion to amend is meritorious.
Accordingly, we grant IFP and remand for the district court
to rule on the Motion for Leave to Add Ground Number Seven and,
if granted, to consider the double jeopardy claim.
As briefly discussed below, Morales has not met his burden
to show that his other issues have merit. We consider only
errors that arguably resulted in a violation of the Constitution
or in a complete miscarriage of justice. United States v. Smith,
32 F.3d 194, 196 (5th Cir. 1994).
Morales has not shown how the omission of the testimony of
the Gonzalezes prejudiced him in his challenge to the
Government's theory that Morales hid the gun under the glove
compartment of the car. See Lockhart v. Fretwell, 113 S. Ct.
838, 842 (1993); United States v. Green, 882 F.2d 999, 1003 (5th
Cir. 1989). Similarly, Morales has not shown how the omission to
introduce road use evidence could have changed the result of his
trial. Green, 882 F.2d at 1003. This court has already resolved
the search and seizure issues against Morales. United States v.
Morales-Cantu, No. 91-8433, slip op. at 8-19 (5th Cir. June 30,
1992) (unpublished). Morales has not shown that this court would
have even considered the merits of an ineffectiveness claim on
direct appeal. See United States v. Gibson, 55 F.3d 173, 179
(5th Cir. 1995).
Morales has not shown that the prosecutor's request that the
jury smell the marijuana was anything more than a proper
invitation for the jury to make a reasonable inference from the
No. 95-50385
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evidence. See United States v. Laury, 985 F.2d 1293, 1307 (5th
Cir. 1993). Nor has Morales shown that that request was a
comment on his exercise of the right not to testify. See United
States v. Fierro, 38 F.3d 761, 771 (5th Cir. 1994), cert. denied,
115 S. Ct. 1388, 1431 (1995). Morales did not show that the
prosecutor personally vouched for the credibility of the
Government's witnesses. See United States v. Washington, 44 F.3d
1271, 1278 (5th Cir.), cert. denied, 115 S. Ct. 2011 (1995). All
issues not raised on appeal are abandoned. Hobbs v. Blackburn,
752 F.2d 1079, 1083 (5th Cir.), cert. denied, 474 U.S. 838(1985).
Morales has appealed the district court's denial of a motion
to supplement the record with information purportedly relating to
the double jeopardy issue. In light of the remand ordered
herein, the appeal of the denial of the motion to supplement is
DISMISSED as moot.
IFP GRANTED; AFFIRMED IN PART, REMANDED IN PART. Appeal of
denial of motion to supplement record is DISMISSED.