IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20829
Summary Calendar
ISAAC MANUEL ALVARADO,
Petitioner-Appellant,
versus
JANIE COCKRELL, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CV-2958
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April 9, 2002
Before Before DAVIS, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Isaac Manuel Alvarado, Texas prisoner #825846, has moved
this court for a certificate of appealability (“COA”) to appeal
the summary-judgment denial of his federal habeas corpus
application filed pursuant to 28 U.S.C. § 2254. In his petition
Alvarado argued that (1) his plea was rendered involuntary by
counsel’s promise of a 10-year sentence; (2) counsel labored
*
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that this opinion should not be published and is not precedent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.
No. 01-20829
-2-
under a conflict of interest because counsel acted as his
interpreter during the guilty-plea proceedings; (3) counsel used
fraud and extortion to force him to plead guilty; and (4) counsel
failed to conduct any pretrial investigation. He also complained
of infirmaries in his state habeas proceedings.
A COA motion may be granted only if the petitioner makes a
substantial showing of the denial of a constitutional right. See
28 U.S.C. § 2253(c)(2). This requires the petitioner to
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, 483-84 (2000).
Alvarado has shown that reasonable jurists would find the
district court’s assessment of his claim that his plea was
rendered involuntary by counsel’s promise of a 10-year sentence
to be debatable or wrong. The district court, in rejecting this
claim, improperly afforded the state habeas court’s findings a
presumption of correctness. The state-court findings should not
have been afforded a presumption of correctness as the state
court’s factual findings were based on a paper record, rather
than a live evidentiary hearing, there were conflicting
affidavits, and the trial court judge in the state habeas action
was not the same judge who presided over Alvarado’s guilty-plea
hearing. See Nethery v. Collins, 993 F.2d 1154, 1157 n.8 (5th
Cir. 1993).
No. 01-20829
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We also conclude that the affidavit of Jose Antonio Villalta
raised a genuine issue of material fact with regard to whether
counsel had promised Alvarado a specific sentence, thus
precluding the grant of summary judgment on this issue. See FED.
R. CIV. P. 56(e). Accordingly, the district court’s order is
VACATED and the case REMANDED to the district court to conduct an
evidentiary hearing on this issue. COA is denied as to all
remaining issues.
Alvarado v. Cockrell
Combined Opinion