United States v. Randy Randall , 712 F. App'x 443 ( 2018 )

Case: 17-30308 Document: 00514350154 Page: 1 Date Filed: 02/16/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-30308
Fifth Circuit
FILED
Summary Calendar February 16, 2018
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
RANDY L. RANDALL,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Louisiana
USDC No. 5:15-CV-2307
USDC No. 5:11-CR-317-8
Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Defendant-Appellant Randy L. Randall, federal prisoner # 15699-035,
filed a 28 U.S.C. § 2255 motion which the district court denied on the merits.
The court determined, however, that Randall had made a substantial showing
of the denial of a constitutional right on the issue whether he “was properly
sentenced, based on the amount of drugs attributable to the conspiracy as a
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 17-30308 Document: 00514350154 Page: 2 Date Filed: 02/16/2018
No. 17-30308
whole, in light of his unequivocal admission of his own knowledge and intent
with respect to that entire amount.”
A defendant must make “a substantial showing of the denial of a
constitutional right” to obtain a certificate of appealability (COA). 28 U.S.C.
§ 2253(c)(2). The district court granted Randall a COA but did not specify
which constitutional right was included in that grant. For the reasons set forth
below, the COA grant is unclear. It is therefore vacated and that issue is
remanded for clarification.
The government contends that the district court granted the COA based
on the Sixth Amendment prohibition of judicial fact-finding that increases the
statutory minimum sentence. See Alleyne v. United States, 133 S. Ct. 2151,
2163-64 (2013). We disposed of this issue in Randall’s direct appeal, however,
so it cannot be reconsidered under § 2255. See United States v. Kalish, 780
F.2d 506, 508 (5th Cir. 1986).
The applicability of the statutory minimum sentence, the issue certified
in the COA grant, was central to the district court’s conclusion that defense
counsel was not ineffective for failing to contest the application of the statutory
minimum sentence. Even if the COA could be construed to include this
particular claim of ineffective assistance of counsel, the district court did not
indicate whether it intended for the COA to include the elements of
performance and prejudice. See Strickland v. Washington, 466 U.S. 668, 687
(1984). When a § 2255 motion “raises a constitutional claim with multiple
elements, a COA may issue with respect to that claim only if the defendant
makes a substantial showing as to each element.” United States v. Ratliff, 719
F.3d 422, 424 (5th Cir. 2013).
We encountered a similar situation in Ratliff, 719 F.3d at 423-24, and
vacated the COA and remanded for clarification as to whether the defendant
2
Case: 17-30308 Document: 00514350154 Page: 3 Date Filed: 02/16/2018
No. 17-30308
had made a substantial showing of the denial of her Sixth Amendment right
to effective assistance of counsel. We do the same here.
The district court’s grant of a COA is VACATED and REMANDED for
clarification. On remand, the district court should clarify its statement that
Randall made a substantial showing of the denial of a constitutional right by
indicating which constitutional right and particular claim or claims are
included in the grant of a COA.
3