United States v. Dewitt Bailey ( 2020 )

Case: 19-10840 Document: 00515520356 Page: 1 Date Filed: 08/07/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 7, 2020
No. 19-10840 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Dewitt Donnell Bailey, also known as "Trash",
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:17-CR-28-2
USDC No. 5:18-CV-233
Before Dennis, Southwick, and Engelhardt, Circuit Judges.
Per Curiam:*
Dewitt Donnell Bailey, federal prisoner # 55530-177, pleaded guilty,
pursuant to a written plea agreement, to possession with intent to distribute
28 grams or more of cocaine base, in violation of 21 U.S.C. § 841(a),
(b)(1)(B)(iii). The sentencing court imposed a top-of-the-guidelines
*
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not be published and is not precedent except under the limited circumstances set forth in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: 19-10840 Document: 00515520356 Page: 2 Date Filed: 08/07/2020
No. 19-10840
sentence of 151 months in prison to be followed by four years of supervised
release. Bailey now moves for a certificate of appealability (COA) to
challenge the district court’s denial of his 28 U.S.C. § 2255 motion in which
he argued that he received ineffective assistance of counsel such that his
guilty plea was rendered unknowing, unintelligent, and involuntary. Bailey
further asserts that the district court erred in denying his § 2255 motion
without holding an evidentiary hearing.
To obtain a COA, a movant must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Slack v. McDaniel,
529 U.S. 473, 483 (2000). Bailey can satisfy this standard by “demonstrating
that jurists of reason could disagree with the district court’s resolution of his
constitutional claims or that jurists could conclude that the issues presented
are adequate to deserve encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003); see Slack, 529 U.S. at 484. Bailey has not
met this standard. See Miller-El, 537 U.S. at 327.
The motion for a COA is DENIED. Bailey’s motion to proceed in
forma pauperis (IFP) is, likewise, DENIED. We construe Bailey’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.
COA DENIED; IFP DENIED; AFFIRM
2