United States v. Castro

Case: 18-10137 Document: 00516243396 Page: 1 Date Filed: 03/17/2022

United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit

FILED
March 17, 2022
No. 18-10137
Lyle W. Cayce
Clerk
United States of America,

Plaintiff—Appellee,

versus

Adrian Castro,

Defendant—Appellant.

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:16-cv-1761

Before Ho, Oldham, and Wilson, Circuit Judges.
Andrew S. Oldham, Circuit Judge:
The original opinion in this case issued on July 14, 2021. The petition
for rehearing is DENIED. We withdraw our previous opinion and substitute
the following in its place.
A judge on our court granted Adrian Castro a certificate of
appealability (“COA”). It’s undisputed that the COA is invalid under 28
U.S.C. § 2253(c)(2)–(3) because it fails to specify a constitutional issue. The
only question is what we should do about it. We vacate the COA and dismiss
the appeal.
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No. 18-10137

I.
Adrian Castro plotted and executed a spree of violent thefts against
United States postal workers. The Government indicted Castro and charged
him with, inter alia, violating 18 U.S.C. § 2114(a) by assaulting mail carriers
and putting their lives in danger, and violating 18 U.S.C. § 924(c)(1)(A) and
(c)(3)(B) by using a firearm in relation to a crime of violence. Castro pleaded
guilty to the relevant charges, and the district court sentenced him to 552
months in prison. This sentence included four concurrent sentences for 168
months based on the fact that Castro “put[] his [victims’] li[ves] in jeopardy
by the use of a dangerous weapon.” 18 U.S.C. § 2114(a). Castro did not
appeal. His conviction became final on July 15, 2004.
Twelve years later, Castro filed his first motion under 28 U.S.C.
§ 2255. That was long after the one-year limitations period provided in the
Antiterrorism and Effective Death Penalty Act (“AEDPA”). See 28 U.S.C.
§ 2255(f)(1). But Castro argued he should get a new limitations period based
on Johnson v. United States, 576 U.S. 591 (2015). See 28 U.S.C. § 2255(f)(3)
(providing a new one-year limitations period where the Supreme Court
recognizes a new right and makes it retroactively applicable to cases on
collateral review). The magistrate judge determined that Johnson’s holding
as to the residual clause of 18 U.S.C. § 924(e)(2)(B) was inapplicable to
Castro’s conviction under § 924(c)(3)(B). Thus, Castro did not get the
benefit of § 2255(f)(3), and his motion was time-barred. Castro objected to
the report and recommendation, albeit with a concession that his argument
was foreclosed by binding Fifth Circuit precedent. The district court adopted
the report and recommendation, denied Castro relief, and denied a COA.
Castro then asked our court for a COA. One judge of our court granted
a COA on a single procedural ground: “whether the district court erred by
denying Castro’s § 2255 motion as untimely.”

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II.
Prisoners challenging their custody are not like ordinary litigants. For
over a century, Congress has required prisoners—unlike anyone else
appealing a judgment—to receive permission before appealing. We first
explain that permission requirement. Then we vacate Castro’s COA.
A.
In 1908, Congress took away the appeal-as-of-right from state
prisoners. See An Act restricting in certain cases the right of appeal to the
Supreme Court in habeas proceedings, 35 Stat. 40, 40 (1908). In its place,
Congress instituted the certificate of probable cause (“CPC”) procedure.
The CPC procedure required a state prisoner to obtain certification from
“the United States court by which the final decision was rendered or a justice
of the Supreme Court” that “probable cause for an appeal” existed. Ibid.
This prerequisite to appeal served to preempt frivolous petitions and prevent
the expenditure of precious judicial resources on meritless cases. See Davis v.
Jacobs, 454 U.S. 911, 917 (1981) (Rehnquist, J., dissenting) (“[C]ongress[]
. . . impose[d] th[e] [CPC] requirement as a means of terminating frivolous
appeals in habeas corpus proceedings.”).
In 1948, Congress broadened the types of judicial officers empowered
to grant CPCs to include circuit judges in addition to Supreme Court justices.
See An Act to revise, codify, and enact into law title 28 of the United States
Code entitled “Judicial Code and Judiciary,” 62 Stat. 869, 967 (1948). And
although the statute did not designate the substantive standard for probable
cause, the Supreme Court held that a prisoner seeking certification must
offer a “substantial showing of the denial of a federal right.” Barefoot v.
Estelle, 463 U.S. 880, 893 (1983) (quotation omitted).
A tidal shift occurred in 1996 when Congress enacted AEDPA, which
overhauled the statutory framework governing habeas corpus with an eye

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towards “eliminat[ing] delays in the federal habeas review process.” Holland
v. Florida, 560 U.S. 631, 648 (2010); see Pub. L. No. 104-132, 110 Stat. 1214
(1996). Section 2253(c)(2), as amended by AEDPA, retained the certification
requirement but changed the name to a “certificate of appealability.” And
instead of permitting an appeal anytime a prisoner made “a substantial
showing of the denial of a federal right,” Barefoot, 463 U.S. at 893 (emphasis
added), AEDPA elevated the standard and limited appeals to only those cases
in which an applicant makes “a substantial showing of the denial of a
constitutional right,” 28 U.S.C. § 2253(c)(2) (emphasis added). As directly
relevant here, AEDPA applied the certificate requirement for the first time
to federal prisoners like Castro. See United States v. Orozco, 103 F.3d 389, 391
(5th Cir. 1996) (noting “a pre-AEDPA § 2255 movant was not required to
obtain [a CPC] in order to appeal the final order in a § 2255 proceeding to a
court of appeals”).
Today, state and federal prisoners face the same hurdle to noticing an
appeal: The applicant must obtain a COA by making “a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The
requirement that a COA identify a constitutional issue serves the same
interest as the earlier CPC requirement—namely to “screen[] out issues
unworthy of judicial time and attention” and to “ensure[] that frivolous
claims are not assigned to merits panels.” Gonzalez v. Thaler, 565 U.S. 134,
145 (2012). In short, the COA requirement serves a gatekeeping function. See
Jennings v. Stephens, 574 U.S. 271, 291–92 (2015) (Thomas, J., dissenting)
(describing the history and purpose of the COA requirement).
The must-identify-a-constitutional-issue requirement is not
diminished where a district court denies relief on procedural grounds. See
Slack v. McDaniel, 529 U.S. 473, 484 (2000). To obtain a COA in such a
circumstance, an applicant must show “that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a

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constitutional right, and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling.” Id. at 478. The
rationale for these rules is simple: If a prisoner must eventually prove a
constitutional violation to secure release from custody, his appeal should
proceed only if he can prove a debatable constitutional issue at the outset. A
procedural-only appeal is much ado about nothing. See, e.g., id. at 483–84
(holding that a COA applicant “must make a substantial showing of the
denial of a constitutional right”); Miller-El v. Cockrell, 537 U.S. 322, 336
(2003) (“[Section] 2253(c) permits the issuance of a COA only where a
petitioner has made a ‘substantial showing of the denial of a constitutional
right.’”).
Most recently, the Supreme Court confronted a COA issued by our
court that is materially identical to the COA our court issued in this case. See
Gonzalez, 565 U.S. at 138. Here are the two Fifth Circuit COAs side-by-side:

Gonzalez v. Thaler United States v. Castro
“whether the habeas application “whether the district court erred by
was timely filed” denying Castro’s § 2255 motion as
untimely”

The Supreme Court unanimously agreed that such a COA is invalid because
it says nothing at all about the Constitution. See Gonzalez, 565 U.S. at 141
(eight justices agreeing that a procedural-only COA is invalid); id. at 155
(Scalia, J., dissenting) (arguing that a procedural-only COA is invalid and also
constitutes a jurisdictional defect). And although an invalid COA does not
deprive us of jurisdiction, the Court nevertheless held that the commands in
§ 2253(c)(2) and (c)(3) are “mandatory.” Id. at 154 (majority op.).
B.
Given Gonzalez and the Court’s unanimous judgment, both sides
unsurprisingly agree that Castro’s COA is invalid. The Government asks us

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to vacate it. The Federal Public Defender (“FPD”) says that once a COA is
issued, it cannot be vacated—no matter how badly it conflicts with the COA
requirements enacted by Congress and affirmed by the unanimous judgment
of the Supreme Court.
We agree with the Government. The Supreme Court has repeatedly
admonished us that procedural-only COAs are invalid. We’ve refused to
follow those instructions before, and we’ve been reversed for the refusal.
Today we resolve to follow the statute that Congress wrote and to forswear
procedural-only COAs. “Having sworn off the habit of venturing beyond
Congress’s intent, we will not accept [the] invitation to have one last drink.”
Alexander v. Sandoval, 532 U.S. 275, 287 (2001).
This approach accords with other habeas doctrines. Take for example
Teague v. Lane, 489 U.S. 288 (1989). Like the COA requirement, the
nonretroactivity doctrine serves the interests of judicial economy, efficiency,
and administration. See, e.g., Mackey v. United States, 401 U.S. 667, 676 (1971)
(Harlan, J., concurring in the judgment) (noting the nonretroactivity
“doctrine was the product of the Court’s disquietude with the impacts of its
fast-moving pace of constitutional innovation in the criminal field” and “a
technique that provided an impetus for the implementation of long overdue
reforms, which otherwise could not be practicably effected” (quotation
omitted)). Like an invalid COA, the nonretroactivity of a Supreme Court
decision under Teague is a non-jurisdictional defense. And where the State
fails to raise Teague, the federal court can raise it sua sponte and dismiss the
habeas petition. See Caspari v. Bohlen, 510 U.S. 383, 389 (1994).
Or take AEDPA’s one-year time bar. See 28 U.S.C. § 2244(d). Like
the COA requirement, the limitations period serves the interests of judicial
economy, efficiency, and administration. See Day v. McDonough, 547 U.S.
198, 205 (2006) (noting § 2244(d) “implicate[s] values beyond the concerns

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of the parties” including “judicial efficiency and conservation of judicial
resources” (quotations omitted)). Like an invalid COA, the limitations
period is a non-jurisdictional defense. And where the State fails to raise it, the
federal court can raise it sua sponte and dismiss the habeas petition. Id. at
209.
Third, take procedural default. Like the COA requirement, the
procedural-default doctrine serves the interests of judicial economy,
efficiency, and administration. See Magourik v. Phillips, 144 F.3d 348, 358 (5th
Cir. 1998). Like an invalid COA, procedural default is a non-jurisdictional
defense. And where the State fails to raise a default, the federal court can
raise it sua sponte and dismiss the habeas petition. Ibid.; see also Brewer v.
Marshall, 119 F.3d 993, 999 (1st Cir. 1997); Rosario v. United States, 164 F.3d
729, 732 (2d Cir. 1998); Sweger v. Chesney, 294 F.3d 506, 520 (3d Cir. 2002);
Yeatts v. Angelone, 166 F.3d 255, 261 (4th Cir. 1999); Sowell v. Bradshaw, 372
F.3d 821, 830 (6th Cir. 2004); Kurzawa v. Jordan, 146 F.3d 435, 440 (7th Cir.
1998); King v. Kemna, 266 F.3d 816, 822 (8th Cir. 2001) (en banc); Vang v.
Nevada, 329 F.3d 1069, 1073 (9th Cir. 2003); United States v. Wiseman, 297
F.3d 975, 979 (10th Cir. 2002); Moon v. Head, 285 F.3d 1301, 1315 n.17 (11th
Cir. 2002).
Fourth and finally, consider exhaustion of state remedies. In
Granberry v. Greer, 481 U.S. 129 (1987), the Court held federal courts have
discretion to raise a prisoner’s failure to exhaust sua sponte. Id. at 133. It even
opined that a contrary holding would be an “extreme position[].” Ibid.; see
also Day v. McDonough, 547 U.S. 198, 206 (2006) (citing Granberry’s holding
favorably post-AEDPA).
Given the plain text of § 2253(c)(2), Supreme Court precedent, and
the similarities between the COA requirement and other habeas doctrines,
we hold that our court has the discretion to raise a COA’s invalidity sua

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sponte and vacate the COA. In so holding, we align our circuit with the strong
majority of circuits that have confronted this issue. See Spencer v. United
States, 773 F.3d 1132, 1138 (11th Cir. 2014) (en banc) (“A failure to specify
[an underlying constitutional issue] would violate the text enacted by
Congress, see 28 U.S.C. § 2253(c)(3), and will result in the vacatur of the
certificate.”); Phelps v. Alameda, 366 F.3d 722, 728–31 (9th Cir. 2004)
(vacating a COA as improvidently granted for failure to specify a debatable
constitutional issue); Khaimov v. Crist, 297 F.3d 783, 786 (8th Cir. 2002)
(“[R]evoking[] a certificate [of appealability], especially one we have issued,
is . . . well within our authority.”); see also United States v. Marcello, 212 F.3d
1005, 1007–08 (7th Cir. 2000) (“[W]e have discretion to decide the case by
reviewing the validity of the [certificate of appealability] or by going straight
to the issues raised on appeal.”). But see Rayner v. Mills, 685 F.3d 631, 635 n.1
(6th Cir. 2012) (“[A]s the issues have already been briefed and presented to
this [c]ourt, we will not review the grant of the COA.”).
C.
The FPD nonetheless says Gonzalez is somehow inconsistent with
vacating Castro’s COA. That misreads the Supreme Court’s decision.
Gonzalez reiterated the principle—well-settled since the landmark
decisions in Slack and Miller-El—that a COA comports with the mandatory
language used by Congress only if it “indicates which specific issue or issues”
constitute “a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2)–(3) (emphasis added); see Gonzalez, 565 U.S. at 140–41
(quoting Slack, 529 U.S. at 484). Gonzalez simply held that a single judge’s
mistake in granting a COA that fails to indicate a constitutional issue does not
strip us of jurisdiction in the same way a late notice of appeal would. See id.
at 144, 147 (distinguishing the COA from a notice of appeal and Bowles v.

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Russell, 551 U.S. 205 (2007)). Nothing in Gonzalez’s holding requires us to
blind ourselves to a COA error that is so patent that the FPD concedes it.
Nor does Gonzalez’s reasoning require that result. In Gonzalez, no one
identified the invalidity of the COA until after briefing in our court, after
argument in our court, after a precedential decision from our court, and after
a cert petition in the Supreme Court. It was not until the State’s brief in
opposition that anyone noticed the COA problem. See 565 U.S. at 145. On
those facts, vacating the COA at such a late date would serve no
“gatekeeping” function whatsoever. Ibid. To the contrary, it would create
serious inefficiencies—the same ones the COA is designed to prevent—to
vacate a COA after our court has already rendered its decision. Ibid.
Those concerns do not apply here. The parties conceded the invalidity
of our COA before oral argument, which we then canceled. So here—unlike
in Gonzalez—we’re confronted with the choice of either (A) honoring the
COA requirement that Congress wrote or (B) ignoring it and plowing ahead
in the face of a conceded error and rendering a decision limited to a non-
constitutional issue. We choose (A)—a choice our court did not have in
Gonzalez.
That does not mean—as the FPD seems to misunderstand—that our
court must always raise COA defects sua sponte, as we must with
jurisdictional defects. To hold otherwise, we would have to equate the two
types of defects in a way that Gonzalez forbids. Rather, we hold only that our
court can raise COA defects sua sponte—just as it can raise numerous other
defects in postconviction proceedings. See supra pp. 6–7 (discussing
retroactivity, the statute of limitations, procedural default, and exhaustion).
We reject the FPD’s “extreme position[]” that COA defects alone are
somehow beyond our cognizance to recognize sua sponte. Granberry, 481
U.S. at 133.

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III.
In some cases, our court and not the movant is to blame for a COA
defect. See Gonzalez, 565 U.S. at 144 (“A petitioner, having successfully
obtained a COA, has no control over how the judge drafts the COA and . . .
may have done everything required of him by law.”). How, then, do we
prevent our mistakes from hurting otherwise-faultless movants?
The answer is simple. When we spot a defective COA, on our own
initiative or otherwise, it should be vacated. Then we can, in our discretion,
consider issuing a valid COA. See United States v. Smith, 945 F.3d 860, 863
(5th Cir. 2019) (“We can correct this nonjurisdictional defect ‘by
considering an amendment to the COA.’” (quoting Gonzalez, 565 U.S. at
146)). Of course, we are bound by the well-settled rule that a prisoner cannot
ask for a COA here on any ground different from the one(s) submitted to and
rejected by the district court. See Black v. Davis, 902 F.3d 541, 545 (5th Cir.
2018). But assuming the prisoner did his part correctly and asked for a valid
COA in the district court and then again in ours, the rule we announce today
will not hurt him. He’ll either get the COA in the first instance or, if we make
a mistake and issue an invalid certificate, we can recognize our mistake and
fix it with a valid one.
Castro asks us to issue a valid COA on “whether the residual clause
found in 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague” after the
Supreme Court’s decision in United States v. Davis, 139 S. Ct. 2319 (2019).
Black poses no obstacle to Castro because his initial § 2255 motion explicitly
argued that § 924(c) is unconstitutionally vague. See Castro v. United States,
No. 3:16-cv-1761, ECF No. 1, at 7 (N.D. Tex. June 24, 2016). The district
court’s denial of that motion amounted to an implicit refusal to issue a COA
on void-for-vagueness grounds. See Habeas Rule Governing Section 2255
Proceedings 11(a) (“The district court must issue or deny a certificate of

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appealability when it enters a final order adverse to the applicant.”); see also
Black, 902 F.3d at 545 (explaining this rule’s importance). Castro now asks
our court for a COA based on Davis—a void-for-vagueness case that held 18
U.S.C. § 924(c)(3)(B) unconstitutionally vague. See 139 S. Ct. at 2336. Thus,
Castro’s request for an amended COA is based on the same ground (void-
for-vagueness) as his original COA request in district court.
Even so, we cannot grant Castro’s request. Castro was not sentenced
under the residual clause in § 924(c)(3)(B). He was sentenced under the
elements clause in § 924(c)(3)(A). The elements clause defines as a “crime of
violence” any felony that “has as an element the use, attempted use, or
threatened use of physical force against the person or property of another.”
18 U.S.C. § 924(c)(3)(A). Here, Castro pleaded guilty to an offense that has
as an element “put[ting] his [victims’] li[ves] in jeopardy by the use of a
dangerous weapon.” 18 U.S.C. § 2114(a). Castro’s indictment, his stipulated
factual resume, and his plea agreement all confirm that he was convicted of
and sentenced for putting the lives of his victims in jeopardy by using a
handgun. There’s no other way he could’ve been sentenced to 168 months
for his § 2114(a) counts. That easily satisfies the elements clause and renders
§ 924(c)’s residual clause and Davis irrelevant. See In re Watt, 829 F.3d 1287,
1290 (11th Cir. 2016) (finding a violation of 18 U.S.C. § 2114(a) in which the
victim’s life was put in jeopardy to constitute a crime of violence); United
States v. Enoch, 865 F.3d 575, 582 (7th Cir. 2017) (same); Knight v. United
States, 936 F.3d 495, 501 (6th Cir. 2019) (same); Williams v. United States,
794 F. App’x 612, 614 (9th Cir. 2019) (mem.) (same).
* * *
The COA we originally granted was invalid, so we now vacate it. And
because Castro has not made “a substantial showing of the denial of a
constitutional right,” see Slack, 529 U.S. at 483–84, we cannot grant an

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amended COA, see Smith, 945 F.3d at 863. We therefore dismiss for lack of
jurisdiction. See Gonzalez, 565 U.S. at 142 (lack of a COA destroys
jurisdiction).
PETITION FOR REHEARING DENIED; COA
VACATED; APPEAL DISMISSED.

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