United States District Court, S.D. Texas, Corpus Christi Division
GRAHAM JACK, SENIOR UNITED STATES DISTRICT JUDGE
October 31, 2019, Defendant/Movant Jose Juan Hoyuela's
(“Hoyuela”) remaining motion to vacate, set
aside, or correct sentence pursuant to 28 U.S.C. § 2255
for ineffective assistance of counsel for failure to appeal
came on to be heard. (D.E. 33; D.E. 36). Both Hoyuela and his
trial attorney testified that Hoyuela's counsel reviewed
his right to appeal after sentencing, and that Hoyuela, in
spite of his concern as to losing his three points for
acceptance of responsibility reduction, never asked his
attorney to appeal. (Evidentiary Hearing, 3:28:25-35;
3:43:57-3:46:50). The Court DENIES Hoyuela's remaining
claim and DISMISSES the action with prejudice.
Court has jurisdiction over this matter pursuant to 28 U.S.C.
FACTUAL AND PROCEDURAL HISTORY
was sentenced to 51 months of imprisonment on February 6,
2018 for illegal reentry, violating 8 U.S.C. §§
1326(a) and 1326(b)(2). (D.E. 29). Hoyuela did not appeal the
sentencing, and judgment became final 14 days after on
February 20, 2018. (D.E. 33, p.1); See Fed. R. App.
P. 4(b) (amend. eff. Dec. 1, 2010). Prior to his sentencing,
Hoyuela rejected an offered plea agreement but, nonetheless,
ultimately pleaded guilty. (D.E. 8, p.3; D.E. 9, p.1). He
filed his initial Motion to Vacate under 28 U.S.C. §
2255 on June 27, 2018. (D.E. 33). Hoyuela filed another
motion to reduce sentence under 18 U.S.C. § 3582(c)(2)
or in the alternative to withdraw his guilty plea, on June
18, 2019. (D.E. 35). Less than a month afterwards, on July
16, 2019, Hoyuela then requested to amend his § 2255
motion. (D.E. 36). This request was granted on August 08,
2019. (D.E. 39). On October 24, 2019, the Court denied his
motion to reduce his sentence pursuant to 18 U.S.C. §
3582(c)(2), or in the alternative, to withdraw his guilty
plea, denied in part his motion to vacate, set aside, or
correct sentence under 28 U.S.C. § 2255, and limited the
scope of his evidentiary hearing to determine whether Hoyuela
told his counsel to file an appeal and whether his counsel
advised him of his right to appeal. (D.E. 47). Then, an
evidentiary hearing was held on October 31, 2019.
CONCLUSIONS OF LAW AND FINDINGS OF FACT
Constitution requires that the “defendant be fully
informed of his right to appeal” by his attorney which
“require[s] that the client be advised not only of his
right to appeal, but also of the procedure and time limits
involved and of his right to appointed counsel on
appeal.” Childs v. Collins, 995 F.2d 67, 69
(5th Cir. 1993) quoting Lumpkin v. Smith, 439 F.2d
1084, 1085 (5th Cir. 1971). If a defendant requests that
counsel file a notice of appeal, counsel's failure to do
so constitutes ineffective assistance even without a showing
that the appeal would be meritorious. See Roe v.
Flores-Ortega, 528 U.S. 470, 477, 486 (2000); cf.
United States v. Tapp, 491 F.3d 263, 266 (5th Cir.
2007). There are two instances in which an attorney's
performance may be deficient when an appeal is not filed: (A)
when a defendant asks that an appeal be filed and the
attorney does not file one, and (B) when counsel fails to
consult a defendant about an appeal when “there is
reason to think either 1) that a rational defendant would
want to appeal . . ., or 2) that this particular defendant
reasonably demonstrated to counsel that he was interested in
appealing.” Roe, 528 U.S. at 480.
“When a defendant has not instructed counsel whether to
file a notice of appeal, the inquiry becomes whether
counsel's failure to consult with a defendant regarding
an appeal constituted deficient performance.”
Id. at 478. However, “At the other end of the
spectrum, a defendant who explicitly tells his attorney not
to file an appeal plainly cannot later complain that, by
following his instructions, his counsel performed
deficiently.” Id. at 477.
Hoyuela testified and admitted that he never asked an appeal
to be filed. (Evidentiary Hearing, 3:43:57-3:46:50). Further,
both Hoyuela and his trial attorney also testified and
admitted that his counsel discussed with Hoyuela his appeal
rights timely after sentencing. Id.; (Evidentiary
Hearing, 3:28:25-35). Hoyuela cannot presently claim that
because no appeal was filed, his counsel performed
deficiently. Therefore, Hoyuela's remaining § 2255
for ineffective assistance of counsel for failure to appeal
CERTIFICATE OF APPEALABILITY
appeal may not be taken to the court of appeals from a final
order in a habeas corpus proceeding “unless a circuit
justice or judge issues a certificate of
appealability.” 28 U.S.C. § 2253(c)(1)(A).
Although Hoyuela has not yet filed a notice of appeal, the
§ 2255 Rules instruct this Court to “issue or deny
a certificate of appealability when it enters a final order
adverse to the applicant.” Rule 11, § 2255 Rules.
Certificate of Appealability (COA) “may issue . . .
only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). “The COA determination under § 2253(c)
requires an overview of the claims in the habeas petition and
a general assessment of their merits.” Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003).
warrant a grant of the certificate as to claims denied on
their merits, “[t]he petitioner must demonstrate that
reasonable jurists would find the district court's
assessment of the constitutional claims debatable or
wrong.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). This standard requires a § 2255 movant to
demonstrate that reasonable jurists could debate whether the
motion should have been resolved differently, or that the
issues presented deserved encouragement to proceed further.
United States v. Jones, 287 F.3d 325, 329 (5th Cir.
2002) (relying upon Slack, 529 U.S. at 483-84). As
to claims that the district court rejects solely on
procedural grounds, the movant must show both that
“jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its
procedural ruling.” Slack, 529 U.S. at 484.
Court finds that Hoyuela cannot establish at least one of the
Slack criteria. Accordingly, he is not entitled to a