     Case: 12-50108        Document: 00512280613         Page: 1     Date Filed: 06/19/2013




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                             FILED
                                                                            June 19, 2013

                                       No. 12-50108                         Lyle W. Cayce
                                                                                 Clerk



UNITED STATES OF AMERICA,

                Plaintiff - Appellee

v.

DEBRA RENEE RATLIFF,

                Defendant - Appellant



                    Appeal from the United States District Court
                         for the Western District of Texas


Before ELROD and HIGGINSON, Circuit Judges, and MARTINEZ, District
Judge.*
HIGGINSON, Circuit Judge.
      Debra Ratliff appeals from the district court’s denial of her § 2255 motion
to vacate her conviction. The lone issue preserved for review is whether her trial
attorney’s failure to file a motion to suppress constituted ineffective assistance of
counsel (“IAC”) and rendered involuntary her guilty plea. To prove that claim,
Ratliff was required to show that (1) a suppression motion would have been
meritorious, (2) her counsel’s failure to file one was objectively unreasonable (the



      *
          District Judge of the Western District of Texas, sitting by designation.
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                                   No. 12-50108

“performance” prong), and (3) but for her counsel’s deficient performance in that
regard, she would not have pleaded guilty (the “prejudice” prong). Ward v. Dretke,
420 F.3d 479, 487–88 & n.19 (5th Cir. 2005).            Adopting the report and
recommendation of a magistrate judge, the district court rejected that claim,
ruling that Ratliff failed to make the required showing as to any of its elements,
and correspondingly denied and dismissed her § 2255 motion. The district court
went on to grant a certificate of appealability (“COA”) on the first issue of whether
Ratliff’s suppression motion would have been meritorious, finding the issue
debatable among reasonable jurists. The district court did not indicate whether
it intended for the COA to include the independently dispositive issues of
performance and prejudice, and Ratliff did not ask this court to expand the scope
of the COA to include those issues.
      We reiterate that “[a] certificate of appealability may issue,” pursuant to
28 U.S.C. § 2253(c), “only if the applicant has made a substantial showing of the
denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 481 (2000)
(emphasis added). Where a federal habeas corpus petition, under 28 U.S.C. §
2244, or, as here, a motion to vacate, under 28 U.S.C. § 2255, raises a
constitutional claim with multiple elements, a COA may issue with respect to
that claim only if the defendant makes a substantial showing as to each element.
See Blue v. Thaler, 665 F.3d 647, 662 (5th Cir. 2011) (“Blue is entitled to a COA
on his Atkins claim only if he can make a substantial showing that he has been
denied his constitutional right to be exempt from execution due to mental
retardation. To make that showing, he must satisfy all three elements of the
Briseño test. . . . [B]ecause Blue has conceded that he cannot show that he
suffers from significant limitations in adaptive functioning[—Briseño prong
two—]reasonable jurists would not debate the correctness of the district court’s
conclusion that it was objectively reasonable for the [Texas Court of Criminal
Appeals] to determine that he is not mentally retarded. We must deny Blue’s

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                                   No. 12-50108

motion for a COA on this issue.”); id. (“If a district court found that a habeas
petitioner’s Strickland claim failed because he could show neither deficient
performance nor prejudice, a request for a COA only as to the deficiency issue
would be futile.”); cf. Phelps v. Alameda, 366 F.3d 722, 729, 730 (9th Cir. 2004)
(noting that district court’s grant of COA on procedural issue, but denial of COA
on merits issue,“present[ed] advisory-opinion problems” because resolution of the
procedural issue would not have “any effect[]” on petitioner’s entitlement to
habeas relief).
      We VACATE the COA and REMAND for clarification as to whether Ratliff
has made a substantial showing of the denial of her Sixth Amendment right to
effective assistance of counsel and is entitled to a COA on that issue. See Berthoff
v. United States, 201 F.3d 426, at *1 (1st Cir. 1999) (per curiam) (unpublished
table decision) (vacating COA and remanding for clarification where, as here,
“[t]he thrust of the court’s remarks in issuing the certificate suggests a desire for
additional guidance” on a constitutional question, but the wording of the COA
leaves “some doubt as to the precise issue(s) on which the certificate was
granted”); Gonzalez v. Thaler, 132 S. Ct. 641, 651 & n.7 (2012) (noting that
circuit courts “regularly” remand for clarification when a COA fails to indicate
a constitutional issue).




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