     Case: 16-20492      Document: 00514239489         Page: 1    Date Filed: 11/16/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                      No. 16-20492                                 FILED
                                                                           November 16, 2017

UNITED STATES OF AMERICA,                                                     Lyle W. Cayce
                                                                                   Clerk
                                                 Plaintiff-Appellee

v.

CARMEN HERNANDEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:15-CV-2075
                             USDC No. 4:13-CR-606-1


Before DENNIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Carmen Hernandez, federal prisoner # 54281-379, seeks a certificate of
appealability (COA) following the district court’s denial of his 28 U.S.C. § 2255
motion challenging his conviction for distribution of child pornography, in
violation of 18 U.S.C. § 2252A(a)(2)(B), (b)(1).            Hernandez contends that
reasonable jurists could debate the correctness of the district court’s denial of
his motion and grant of summary judgment for the Government without


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-20492     Document: 00514239489      Page: 2   Date Filed: 11/16/2017


                                  No. 16-20492

allowing him to respond to the Government’s supplemental evidence as
required by Rule 7(c) of the Rules Governing Section 2255 Proceedings.
      A COA may issue “only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To meet that
standard, a movant must demonstrate that “reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved
in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 483-84
(2000) (internal quotation marks and citation omitted). If a district court has
rejected the claims on their merits, the movant “must demonstrate that
reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Id. at 484.
      Reasonable jurists could debate whether the district court erred by
dismissing Hernandez’s § 2255 motion without allowing him the opportunity
to admit or deny the correctness of the materials. See Rule 7(c). Further,
Hernandez has shown that reasonable jurists could debate the district court’s
denial of his constitutional claims while several factual issues remained in
dispute. See FED. R. CIV. P. 56(a); United States v. Kimler, 167 F.3d 889, 892
(5th Cir. 1999); cf. Houser v. Dretke, 395 F.3d 560, 562 (5th Cir. 2004); see also
Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968) (the burden of proving
consent to a search “cannot be discharged by showing no more than
acquiescence to a claim of lawful authority.”).
      “The usual procedure after this court grants a COA is for the appeal to
proceed to full briefing by all parties.” Whitehead v. Johnson, 157 F.3d 384, 388
(5th Cir. 1998). Where, however, “the sole issue before us . . . is indisputably
resolved by the petitioner’s COA application and the record . . . further briefing
on that issue [is] unnecessary.” Id. (vacating judgment and remanding). Here,



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                                  No. 16-20492

it is clear from the record that Hernandez was not granted an opportunity to
review the Government’s supplemental evidence as required by Rule 7(c). The
district court dismissed the case two days after receiving the Government’s
supplement. The record reflects no response from Hernandez, and no response
is referenced in the order of dismissal. We therefore find that the district court
abused its discretion by not following the Rule 7(c) procedure. See In re
Liljeberg Enterprises, Inc., 304 F.3d 410, 433 n.43 (5th Cir. 2002) (denial of
motion to expand record is reviewed for abuse of discretion).
      Accordingly, Hernandez’s motion for a COA is GRANTED, the district
court’s judgment of dismissal is VACATED, and the matter is REMANDED to
allow Hernandez to admit or deny the correctness of the materials in
accordance with Rule 7(c).




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