     Case: 14-50534      Document: 00513115177         Page: 1    Date Filed: 07/14/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-50534
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                   July 14, 2015
                                                                           Lyle W. Cayce
                                                 Plaintiff-Appellee             Clerk

v.

HUGO ROBERTO ESTRADA,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                              USDC No. 3:13-CV-94


Before DENNIS, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM: *
       Hugo Roberto Estrada, federal prisoner # 80887-280, seeks a certificate
of appealability (COA) to appeal the denial of his 28 U.S.C. § 2255 motion.
Estrada pleaded guilty to conspiracy to possess with intent to distribute more
than 1,000 kilograms of marijuana.
       To obtain a COA, Estrada must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When a district court
has rejected a constitutional claim on the merits, a COA will be granted if the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-50534

movant shows that reasonable jurists would find the district court’s
assessment of the claim debatable or wrong. Slack v. McDaniel, 529 U.S. 473,
484 (2000). A movant satisfies this standard by showing 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.” Miller-El v. Cockrell, 537 U.S. 322, 327
(2003). That threshold inquiry does not require a showing that the appeal will
succeed. Id.
      Estrada argues, as he did in the district court, that counsel rendered
ineffective assistance by failing to advise him of his constitutional right to a
speedy trial and by failing to file a motion to dismiss based on speedy-trial
grounds. He also contends that the district court erroneously construed his
ineffective assistance claim as based on a purported violation of the Speedy
Trial Act. He argues that his claim is founded on the Sixth Amendment right
to a speedy trial and is not, as the district court determined, based on any
statutory ground. Finally, he asserts that the district court erred by failing to
hold an evidentiary hearing.
      To the extent that the district court construed Estrada’s ineffective
assistance claim as based on an alleged violation of the Speedy Trial Act, the
district court’s ruling is debatable by reasonable jurists. See Slack, 529 U.S.
at 484.   Estrada’s § 2255 motion and brief in support indicate that his
ineffective assistance claim was based on a purported violation of his Sixth
Amendment right to a speedy trial. The district court did not distinguish
between a claim under the Speedy Trial Act and a constitutional speedy trial
claim.
      However, even if the district court’s ruling is debatable, we can only
grant a COA “if reasonable jurists would find it debatable that the petition



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                                 No. 14-50534

states a valid claim of the denial of a constitutional right.” Houser v. Dretke,
395 F.3d 560, 561 (5th Cir. 2004).      The Sixth Amendment guarantees a
defendant the right to a speedy trial. Barker v. Wingo, 407 U.S. 514, 515
(1972). The constitutional right to a speedy trial attaches when a person is
arrested, indicted, or otherwise formally charged. United States v. Serna-
Villarreal, 352 F.3d 225, 230 (5th Cir. 2003). To determine whether the right
to a speedy trial has been denied, a court must balance four factors: (1) the
length of the delay; (2) the reason for the delay; (3) the defendant’s assertion
of his speedy-trial rights; and (4) the prejudice to the defendant resulting from
the delay. Goodrum v. Quarterman, 547 F.3d 249, 257 (5th Cir. 2008) (citing
Barker, 407 U.S. at 530).
      The record reflects that there was an approximately 25-month delay
between the time when the indictment was returned and when Estrada was
arrested. As a general rule, we presume a 12-month delay between indictment
and trial to be prejudicial, thus requiring consideration of the other Barker
factors. Robinson v. Whitley, 2 F.3d 562, 568 (5th Cir. 1993). Turning to the
next factor, the record is inconclusive as to the reasons for the delay between
indictment and arrest.      The presentence investigation report, however,
appears to indicate that Estrada was under surveillance at various points after
his indictment but before his arrest. At the very least, there is some question
as to whether the Government “diligently pursue[d] [Estrada] from indictment
to arrest.” See United States v. Bishop, 629 F.3d 462, 466 (5th Cir. 2010).
Further, the record also reflects that Estrada may have been prejudiced by the
delay. Specifically, the record shows that Estrada’s sentence may have been
based upon drug quantities that were seized after the June 2009 indictment.
The foregoing analysis is intended only to demonstrate that based on the
record, the issues presented were adequate to deserve encouragement to



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                                 No. 14-50534

proceed further. See Slack, 529 U.S. at 484. We express no view on the merits
of Estrada’s constitutional claim.
      Because the district court did not expressly address Estrada’s Sixth
Amendment claim that counsel was ineffective for failing to advise him of his
right to a speedy trial and by failing to file a motion to dismiss based on
constitutional speedy-trial grounds, reasonable jurists could agree that the
issue of counsel’s effectiveness is “adequate to deserve further encouragement.”
Id. Accordingly, a COA is GRANTED on that issue. Because the district court
did not expressly address Estrada’s claim that counsel was ineffective for
failing to discuss or pursue the constitutional speedy-trial claim, we VACATE
the judgment of the district court and REMAND for consideration of the issue
and, if necessary, an evidentiary hearing. See Whitehead v. Johnson, 157 F.3d
384, 388 (5th Cir. 1998).




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