Case: 19-50657 Document: 00515478072 Page: 1 Date Filed: 07/06/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-50657 July 6, 2020
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
GILBERTO BROCHE RUIZ,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:17-CV-629
USDC No. 1:15-CR-312-1
Before HIGGINBOTHAM, SOUTHWICK, and WILLETT, Circuit Judges.
PER CURIAM: *
Gilberto Broche Ruiz, federal prisoner # 59833-380, moves this court for
a certificate of appealability (COA) to appeal the district court’s denial of his
28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. Ruiz filed
the motion to challenge his 210-month sentence for conspiracy to possess with
intent to distribute 500 grams or more of methamphetamine and possession
with intent to distribute 500 grams or more of methamphetamine. He asserts
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-50657 Document: 00515478072 Page: 2 Date Filed: 07/06/2020
No. 19-50657
that his trial counsel rendered ineffective assistance by not moving to suppress
the evidence seized from his cell phone. Ruiz further argues that the district
court abused its discretion in not construing the new ineffectiveness claims he
raised in his objections to the magistrate judge’s report and recommendation
as a motion to amend his § 2255 motion. Additionally, Ruiz contends that the
district court abused its discretion in denying his § 2255 motion without 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). If a district court has
denied the constitutional claims on the merits, the movant “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). When the district court’s denial of relief is based on procedural
grounds, a COA may not issue unless the prisoner shows 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.” Id.
Ruiz has not made the requisite showing. See id. Accordingly, his
request for a COA is denied. In addition, the claims Ruiz fails to raise before
this court are deemed abandoned. See Hughes v. Johnson, 191 F.3d 607, 613
(5th Cir. 1999); Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
With respect to Ruiz’s claim that the district court should have held an
evidentiary hearing, a COA is not required to appeal the denial of an
evidentiary hearing in a federal habeas proceeding. Norman v. Stephens, 817
F.3d 226, 234 (5th Cir. 2016). We therefore construe his motion for a COA with
respect to the district court’s failure to hold an evidentiary hearing as a direct
appeal of that issue. See id.
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No. 19-50657
We review a district court’s refusal to grant an evidentiary hearing on a
§ 2255 motion for abuse of discretion. United States v. Cavitt, 550 F.3d 430,
435 (5th Cir. 2008). To show abuse of discretion, Ruiz must come forward with
“independent indicia of the likely merit of [his] allegations.” Id. at 442
(internal quotation marks and citation omitted). Because Ruiz has failed to
show that he had a likely meritorious claim for relief under § 2255, the district
court’s denial of Ruiz’s § 2255 motion without an evidentiary hearing is
affirmed. See Norman, 817 F.3d at 234.
COA DENIED; AFFIRMED.
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