Hinojosa v. United States ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-20482
USDC No. H-97-CV-1404
HUMBERTO HINOJOSA,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
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February 4, 1999
Before DAVIS, DUHE’, and PARKER, Circuit Judges.
PER CURIAM:
Humberto Hinojosa, federal prisoner # 48660-079, requests a
Certificate of Appealability (COA) to appeal the district court’s
denial of his 28 U.S.C. § 2255 motion. Hinojosa moves to
substitute a new motion for COA and a brief in support for his
original motion and brief. Hinojosa’s motion to substitute his
brief is GRANTED and his original brief is STRICKEN.
Hinojosa argues that he was denied effective assistance of
habeas counsel. Hinojosa has not made a substantial showing of
the denial of a constitutional right with regard to this claim.
See Irving v. Hargett, 59 F.3d 23, 26 (5th Cir. 1995)(holding
that a petitioner has no constitutional right to counsel in
post-conviction proceedings and cannot claim ineffective
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No. 98-20482
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assistance of habeas counsel).
Hinojosa claims that the district court erred in denying his
motion for relief from judgment. This issue is not adequately
argued in the body of Hinojosa’s appellate brief and is deemed
abandoned. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.
1993).
Hinojosa argues that the district court erred in calculating
the quantity of drugs attributable to him for sentencing
purposes. Hinojosa’s claim that the sentencing court misapplied
the Sentencing Guidelines is not cognizable under § 2255. See
United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995).
Hinojosa argues that his due process rights were violated
because the evidence supporting his sentence lacks sufficient
indicia of reliability. The Government responded that Hinojosa
procedurally defaulted his due process claim by failing to raise
the issue on direct appeal. The district court summarily
dismissed Hinojosa’s motion for § 2255 relief without giving
Hinojosa an opportunity to respond to the affirmative defense.1
In so doing, the court noted that Hinojosa’s claims were without
merit but did not explain the basis for its conclusion. See
United States v. Daly, 823 F.2d 871, 872 (5th Cir. 1987)(holding
that the district court must state its findings of fact and
conclusions of law when ruling on a § 2255 motion).
1
See United States v. Samuels, 59 F.3d 526, 528 (5th Cir.
1995)(holding that a defendant is required to show both cause for
the procedural default in not raising an issue on direct appeal
and some form of actual prejudice that he suffered as a result of
the error).
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No. 98-20482
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Hinojosa claims in his motion for COA that he has cause for
the procedural default because he received ineffective assistance
of trial and appellate counsel. The record does not conclusively
show that Hinojosa is entitled to no relief because Hinojosa
should have been given the opportunity to argue cause and
prejudice in the district court. Because the court did not state
its reasons for denying Hinojosa’s § 2255 motion, it is
impossible to determine whether Hinojosa’s claim was denied based
on the procedural default or on the merits. Accordingly, IT IS
ORDERED that Hinojosa’s motion for COA is GRANTED, the district
court’s order is VACATED and the case REMANDED for further
proceedings. See 28 U.S.C. § 2253(c)(2). On remand, the
district court should provide its findings and conclusions of
law. It should also consider whether to allow Hinojosa to amend
his § 2255 motion to incorporate claims of ineffective assistance
of counsel.
Because this case is being remanded for further proceedings,
we pretermit consideration of the other appellate issues raised
by Hinojosa. Hinojosa’s motion for leave to proceed in forma
pauperis (IFP) is GRANTED.
MOTION TO SUBSTITUTE BRIEF GRANTED; COA GRANTED; MOTION FOR
LEAVE TO PROCEED IFP GRANTED; VACATED AND REMANDED.