     Case: 19-10072      Document: 00515335882         Page: 1    Date Filed: 03/06/2020




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

                                                                                FILED
                                      No. 19-10072                          March 6, 2020
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff-Appellee

v.

RODNEY WYNN,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:18-CV-1811


Before SMITH, COSTA, and HO, Circuit Judges.
PER CURIAM: *
       Rodney Wynn, federal prisoner # 50077-177, pleaded guilty to
kidnapping and aiding and abetting the substantive offense of kidnapping in
violation of 18 U.S.C. §§ 1201(a) and 2. The district court sentenced Wynn to
293 months of imprisonment and to five years of supervised release. Wynn
moves for a certificate of appealability (COA) to challenge the district court’s
dismissal of his 28 U.S.C. § 2255 motion.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-10072     Document: 00515335882     Page: 2   Date Filed: 03/06/2020


                                  No. 19-10072

      According to Wynn, defense counsel was ineffective for advising him to
challenge the enhancements to his sentence, which resulted in the loss of an
adjustment under U.S.S.G. § 3E1.1 for acceptance of responsibility. He further
argues that the district court erred in dismissing his claim of ineffective
assistance of counsel without ordering the Government to respond to his § 2255
motion and without ordering defense counsel to submit an affidavit addressing
Wynn’s allegations or holding an evidentiary hearing.
      To obtain a COA, Wynn must make “a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as here, claims are
rejected on the merits, the prisoner must “demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional claims
debatable or wrong” or that the issues presented “deserve encouragement to
proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
      Wynn has failed to demonstrate that he deserves encouragement to
proceed further on his claim of ineffective assistance of counsel.        See id.
Because he has not shown that he had a meritorious claim for relief under
§ 2255, the district court was not obliged to order a response from the
Government or request an affidavit from Wynn’s counsel. See Rule 4(b) of the
Rules Governing Section 2255 Proceedings for the United States District
Courts. As such, his motion for a COA to raise these claims is denied.
      With respect to Wynn’s claim that the district court should have held an
evidentiary hearing, a COA is not required to appeal the denial of an
evidentiary hearing in a federal habeas proceeding. Norman v. Stephens, 817
F.3d 226, 234 (5th Cir. 2016). We therefore construe his motion for a COA with
respect to the district court’s failure to hold an evidentiary hearing as a direct
appeal of that issue. See id.




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    Case: 19-10072     Document: 00515335882      Page: 3   Date Filed: 03/06/2020


                                   No. 19-10072

      This court reviews a district court’s refusal to grant an evidentiary
hearing on a § 2255 motion for abuse of discretion. United States v. Cavitt, 550
F.3d 430, 435 (5th Cir. 2008). To show abuse of discretion, Wynn must come
forward with “independent indicia of the likely merit of [his] allegations.” Id.
at 442 (citation omitted). Wynn does not attempt to explain why an evidentiary
hearing was necessary in his case, what such a hearing would have shown, or
why the district court abused its discretion by failing to conduct such a hearing.
Accordingly, the district court’s dismissal of Wynn’s § 2255 motion without an
evidentiary hearing is affirmed.
      COA DENIED; AFFIRMED.




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