     Case: 19-40677      Document: 00515351482         Page: 1    Date Filed: 03/19/2020




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

                                                                                 FILED
                                      No. 19-40677                         March 19, 2020
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk


                                                 Plaintiff–Appellee,

v.

EFRAIN GARZA, also known as Picachu,

                                                 Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 5:19-CV-55


Before HIGGINBOTHAM, SOUTHWICK, and WILLETT, Circuit Judges.
PER CURIAM: *
       Efrain Garza, federal prisoner # 10728-179, moves for a certificate of
appealability (COA), to appeal the district court’s dismissal with prejudice of
his 28 U.S.C. § 2255 motion challenging his convictions for (1) conspiracy to
kidnap in violation of 18 U.S.C. § 1201, and (2) conspiracy to use a firearm
during a crime of violence in violation of 18 U.S.C. § 924(o). He argues that the
waiver of collateral relief in his plea agreement does not bar him from gaining
habeas relief based upon United States v. Davis, 139 S. Ct. 2319 (2019),


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-40677     Document: 00515351482     Page: 2   Date Filed: 03/19/2020


                                  No. 19-40677

because Davis renders him actually innocent of his § 924 conviction and, he
contends, actual innocence is an exception to the waiver. Because Garza fails
to address the jurisdictional and ineffective assistance of counsel claims raised
in his § 2255 motion, those claims have been abandoned. See Hughes v.
Johnson, 191 F.3d 607, 613 (5th Cir. 1999).
      A COA may be issued only if Garza “has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Slack v.
McDaniel, 529 U.S. 473, 484 (2000). Because the district court dismissed
Garza’s motion on procedural grounds as to the Davis claim, he must show “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.” See Slack, 529 U.S. at 484.
      Garza has made the required showing. See id. Accordingly, a COA is
GRANTED with respect to whether Garza’s actual-innocence claim constitutes
an exception to the collateral relief waiver in his plea agreement permitting
him to raise a Davis claim. See Bousley v. United States, 523 U.S. 614, 623
(1998); United States v. Reece, 938 F.3d. 630, 634 n.3 (5th Cir. 2019); cf. United
States v. Adams, 814 F.3d 178, 182-83 (4th Cir. 2016). Because the Government
did not file a brief in the underlying § 2255 proceeding and because the district
court did not address this issue, we VACATE the judgment to the extent it
denied § 2255 relief pursuant to Davis based upon the collateral relief waiver,
and we REMAND for consideration of the issue. Garza’s motion for the
appointment of counsel is DENIED as unnecessary.




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