Case: 14-40987 Document: 00513050403 Page: 1 Date Filed: 05/20/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-40987
United States Court of Appeals
Fifth Circuit
FILED
May 20, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
EDUVAR ROJAS-MURGA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:14-CV-6
USDC No. 2:12-CR-896-1
Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
Eduvar Rojas-Murga (Rojas), federal prisoner # 25243-379, pleaded
guilty to illegal reentry and was sentenced to 46 months in prison. This court
dismissed his direct appeal as frivolous, and the United States Supreme Court
denied Rojas’s request for a writ of certiorari. After his 28 U.S.C. § 2255 motion
was dismissed on the merits, Rojas filed a motion to correct his sentence
pursuant to Federal Rule of Criminal Procedure 35(a). The district court
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 14-40987
determined that the Rule 35(a) motion was untimely. In addition, the court
construed the Rule 35(a) motion as a successive § 2255 motion, concluded that
it did not have jurisdiction to consider the motion because Rojas had not
obtained this court’s authorization to file it, and therefore denied it as an
unauthorized successive § 2255 motion. The district court also denied Rojas’s
motion to proceed in forma pauperis (IFP) on appeal, certifying that the appeal
was not taken in good faith, because the Rule 35(a) motion was not timely filed.
Rojas has appealed and moves for a certificate of appealability (COA) and leave
to proceed IFP.
To the extent that Rojas challenges the district court’s denial of his
motion as an unauthorized successive § 2255 motion, a COA is required. 28
U.S.C. § 2253(c)(1)B). Insofar as Rojas challenges the denial of his Rule 35(a)
motion as untimely filed, a COA is not required. See Ojo v. INS, 106 F.3d 680,
681 (5th Cir. 1997).
A COA may be issued “only if the applicant has made a substantial
showing of the denial of a constitutional right.” § 2253(c)(2). When the district
court’s denial of federal collateral relief is based on procedural grounds, “a COA
should issue when the prisoner shows, at least, that jurists of reason would
find it debatable whether the [motion] 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 v. McDaniel, 529
U.S. 473, 484 (2000). An applicant satisfies the Slack standard by showing
that “jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327
(2003).
In his COA motion, Rojas does not challenge the district court’s
determination that his Rule 35(a) motion was an unauthorized successive
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No. 14-40987
§ 2255 motion. He, therefore, has failed to make the required COA showing.
See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999); Brinkmann v. Dallas
County Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Because Rojas has
failed to show “jurists could conclude the issues presented are adequate to
deserve encouragement to proceed further,” Miller-El, 537 U.S. at 327, his
request for a COA is DENIED.
Although a COA is not required for the appeal of a denial of a Rule 35(a)
motion, Rojas still must show a nonfrivolous issue for appeal. See FED. R. APP.
P. 24(a); Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982). In his IFP motion,
Rojas does not address the district court’s reason for denying IFP, i.e., that his
Rule 35 motion was not timely filed. By failing to discuss the district court’s
rationale for denying his IFP motion, Rojas has abandoned the issue, and it is
the same as if he had not appealed the judgment. See Brinkmann, 813 F.2d at
748. Because Rojas has failed to demonstrate that he will raise a nonfrivolous
issue on appeal, his motion to proceed IFP is denied. See FED. R. APP. P. 24(a);
Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982). The appeal is without merit
and is dismissed as frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997); Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2.
COA and IFP DENIED; APPEAL DISMISSED.
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