     Case: 19-50264      Document: 00515368506         Page: 1    Date Filed: 04/01/2020




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

                                                                               FILED
                                    No. 19-50264                            April 1, 2020
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

OMAR CHAVEZ, also known as Hector Manuel Martinez-Balderas,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 5:18-CV-834
                             USDC No. 5:16-CR-358-1


Before: HIGGINBOTHAM, SOUTHWICK, and WILLET, Circuit Judges.

PER CURIAM: *
       Omar Chavez, federal prisoner # 52414-280, moves for a certificate of
appealability (COA) to appeal the denial of his 28 U.S.C. § 2255 motion
challenging     his   conviction     and    sentence     for   conspiracy       to      possess
methamphetamine with intent to distribute. He also seeks leave to proceed in
forma pauperis (IFP) on appeal. Chavez contends that (1) he did not validly
waive his right to collaterally challenge his sentence; (2) the Government

       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-50264     Document: 00515368506    Page: 2   Date Filed: 04/01/2020


                                 No. 19-50264

breached the plea agreement; (3) the district court erred by denying § 2255
relief without an evidentiary hearing; and (4) he received ineffective assistance
of counsel.
      To obtain a COA, Chavez must make “a substantial showing of the denial
of a constitutional right,” 28 U.S.C. § 2253(c)(2), by “showing that reasonable
jurists could debate whether (or, for that matter, agree that) the [motion]
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, 484 (2000) (internal quotation marks and citation
omitted); see 28 U.S.C. § 2253(c)(2). To meet that burden, he must show that
“reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack, 529 U.S. at 484.
      With respect to his claims of invalid waiver, breach of the plea
agreement, and ineffective assistance of counsel, Chavez fails to make the
required showing to obtain a COA, and the motion for a COA is denied. We
construe Chavez’s motion for a COA with respect to the district court’s denial
of an evidentiary hearing as a direct appeal of that issue, see Norman v.
Stephens, 817 F.3d 226, 234 (5th Cir. 2016), and affirm. Finally, because
Chavez has not shown that his appeal will raise legal points arguable on their
merits, we deny the motion to proceed IFP. See Howard v. King, 707 F.2d 215,
220 (5th Cir. 1983).
      COA DENIED; JUDGMENT AFFIRMED; MOTION FOR LEAVE TO
APPEAL IFP DENIED.




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