     Case: 18-10637      Document: 00515456988         Page: 1    Date Filed: 06/18/2020




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

                                                                                FILED
                                      No. 18-10637
                                                                            June 18, 2020
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

                                                 Plaintiff–Appellee,

v.

HECTOR SALDIVAR,

                                                 Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:18-CV-275


Before HIGGINBOTHAM, SOUTHWICK, and WILLETT, Circuit Judges.
PER CURIAM: *
       A jury convicted Hector Saldivar, federal prisoner # 53912-177, of
conspiracy to possess with intent to distribute 50 grams or more of a mixture
or substance containing a detectable amount of methamphetamine. Saldivar
seeks a certificate of appealability (COA) to appeal the dismissal of his 28
U.S.C. § 2255 motion asserting ineffective assistance of counsel, and he seeks
a COA to challenge the denial of his Federal Rule of Civil Procedure 59(e)
motion for relief from the judgment of dismissal. “[A] substantial showing of


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-10637

the denial of a constitutional right” must be made in order for a COA to issue.
§ 2253(c)(2); see Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Saldivar will
meet this standard if he shows “that jurists of reason could disagree with the
district court’s resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve encouragement to
proceed further.” Buck v. Davis, 137 S. Ct. 759, 773 (2017) (internal quotation
marks and citation omitted). Conclusory assertions form no basis for § 2255
relief. See Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983).
      Saldivar’s argument concerning the judgment of dismissal is entirely
conclusory and therefore ineffectual. See id.; see also Henderson v. Cockrell,
333 F.3d 592, 605 (5th Cir. 2003). No jurists of reason could conclude that this
claim deserves encouragement to proceed further, and a COA on the claim is
DENIED. See Buck, 137 S. Ct. at 773.
      Saldivar’s Rule 59(e) motion in effect sought § 2255 relief because the
motion challenged the resolution of the ineffectiveness claim on the merits. See
Gonzalez v. Crosby, 545 U.S. 524, 532 (2005); see also Williams v. Thaler, 602
F.3d 291, 302-05, 312-13 (5th Cir. 2010). Given that Saldivar did not have our
authorization to seek successive habeas relief, the district court did not have
jurisdiction to entertain his motion to reconsider the merits dismissal of his
§ 2255 motion. See Williams, 602 F.3d at 302-05, 312-13. Accordingly, as no
jurists of reason could conclude this claim deserves encouragement to proceed
further, a COA on the claim is DENIED. See Buck, 137 S. Ct. at 773.
      Saldivar also contends that the district court erred by denying his Rule
60(b) motion without an evidentiary hearing. He is not required to obtain a
COA to appeal the denial of an evidentiary hearing; therefore, to the extent
that he seeks a COA on this issue, we construe his COA request “as a direct
appeal from the denial of an evidentiary hearing.” Norman v. Stephens, 817



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                                  No. 18-10637

F.3d 226, 234 (5th Cir. 2016). We review for plain error because Saldivar could
have raised this issue in the district court but did not. See Puckett v. United
States, 556 U.S. 129, 136 (2009).
      An evidentiary hearing is required “[u]nless the motion and the files and
records of the case conclusively show that the prisoner is entitled to no relief.”
§ 2255(b). “Conclusory allegations, unsubstantiated by evidence, do not
support [a] request for an evidentiary hearing.” United States v. Reed, 719 F.3d
369, 373 (5th Cir. 2013). “A defendant is entitled to an evidentiary hearing on
his § 2255 motion only if he presents independent indicia of the likely merit of
his allegations.” Id. (internal quotation marks, brackets, and citation omitted).
Saldivar has not presented such indicia. Therefore, he fails to show plain error
in the implicit denial of an evidentiary hearing because he cannot
“demonstrate any error at all.” United States v. Teuschler, 689 F.3d 397, 400
(5th Cir. 2012); see Reed, 719 F.3d at 373. Consequently, the district court’s
judgment is AFFIRMED as to the lack of an evidentiary hearing.




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