UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 96-50491
Summary Calendar
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARRELL LENNARD BATES,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(93-CR-181)
_________________________________________________________________
April 15, 1997
Before JONES, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
Before us are two matters raised by Darrell Lennard
Bates, Texas inmate #530855, which contest his guilty-plea
conviction and sentence for filing a federal tax return with false
and fraudulent statements in violation of 26 U.S.C. § 7206. His
earlier notice of appeal relates to the district court’s June 11,
1996 order denying Bates’s motion for modification of the plea
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
agreement underlying his federal conviction or, alternatively,
leave to be released from the binding nature of the plea agreement.
The latter appeal is from the court’s order entered September 16,
1996, which denied Bates’s request for appointment of counsel and
his complaint of ineffective assistance of counsel prior to
conviction and on appeal. Both of these motions essentially seek
federal habeas relief pursuant to U.S.C. § 2255. We deny Bates’s
appeal from the first order as not warranting a certificate of
appealability, and as to the successive “habeas petition,” we deny
permission to pursue it.
A brief further explanation of our ruling is in order.
Bates pleaded guilty and received a thirty-six month term of
imprisonment, to be served consecutively to his present confinement
in the Texas State prison system for an unrelated conviction. This
court affirmed the federal guilty-plea conviction and sentence on
appeal, United States v. Bates, No. 95-50111 (5th Cir. Sept. 21,
1995) (unpublished). This court also dismissed Bates’s appeal from
the denial of a motion requesting the federal sentence to run
concurrently with his state sentence and for other relief,
characterizing the motion as “innominate.” United States v. Bates,
No. 96-50093 (5th Cir. June 12, 1996) (unpublished).
On June 7, 1996, Bates moved in the district court for
modification of the plea agreement underlying his federal
conviction or for leave to be released from the plea agreement. He
asserted that counsel at trial and on appeal rendered ineffective
2
assistance by erroneously assuming that the district court accepted
his plea agreement. The district court denied the motion, noting
that it had accepted Bates’s guilty-plea, sentenced him, and
entered final judgment in 1995. Bates filed a timely notice of
appeal.
On September 13, 1996, Bates filed a motion entitled
“Defendant Request Appointment of Counsel for Hearing on
Defendant’s Motion Because U.S. District Judge and U.S. Government
Failed to Enforce the Laws Under U.S.C.A. Title 26, U.S.C. Internal
Revenue Code(s) in its Entirety(s) 7206(1) and Others Known and
Unknown in Violations of the Laws and Incorrect Applying Guidelines
and Order.” The district court denied this motion, and Bates again
appealed.
To the extent both of the matters now on appeal seek
relief from Bates’s federal conviction, they are habeas corpus
petitions under § 2255, and we will treat them as such. Although
the district court did not mention it, the appeal of these matters
is governed by the Anti-Terrorism and Effective Death Penalty Act
of 1996 (AEDPA), which became effective April 24, 1996. According
to AEDPA, Bates may not appeal the district court’s June 11 order
without a certificate of appealability, which, however, may be
entered by a circuit judge. 28 U.S.C. § 2253(c) (Supp. 1996), as
amended by AEDPA. A certificate of appealability must indicate
which specific issue or issues present a substantial showing by the
petitioner of the denial of a constitutional right. 28 U.S.C.
3
§ 2253(c)(3) (Supp. 1996). Bates cannot make this showing. To the
extent we understand his complaints, the contention that the
district court never accepted his guilty plea is contrary to the
district court’s explicit statement, as well as the underlying
judgment, and is frivolous. Bates’s ineffective assistance of
counsel claim, predicated on the guilty plea point, is likewise
frivolous. No certificate of appealability is warranted.
Bates’s appeal of the September 16, 1996 order falls
under the rules for successive habeas petitions as enacted by
AEDPA, and requires authorization in this court of appeals for
Bates to proceed in the district court. Bates made no such motion
in this court, and the district court neglected to consider AEDPA’s
applicability. Nonetheless, we may treat Bates’s appeal as a
motion to file a successive habeas petition. On that basis, it is
frivolous for the same reasons that we deny a certificate of
appealability. In addition, Bates cannot satisfy the stringent
standards required by AEDPA for the allowance of second or
successive habeas petitions. See 28 U.S.C. § 2255, as amended
(Supp. 1996).
For the foregoing reasons, we deny certificate of
appealability and dismiss Bates’s appeal of the June 11, 1996 order
of the district court; we also deny Bates’s motion for a successive
habeas application, which derives from his appeal of the court’s
September 16, 1996 order.
4
COA DENIED and appeal DISMISSED; motion for successive
habeas petition DENIED.
5