Case: 19-10840        Document: 00515520356             Page: 1      Date Filed: 08/07/2020




             United States Court of Appeals
                  for the Fifth Circuit                                United States Court of Appeals
                                                                                Fifth Circuit

                                                                              FILED
                                                                         August 7, 2020
                                     No. 19-10840                        Lyle W. Cayce
                                                                              Clerk

 United States of America,

                                                                   Plaintiff—Appellee,

                                          versus

 Dewitt Donnell Bailey, also known as "Trash",

                                                               Defendant—Appellant.


                   Appeal from the United States District Court
                       for the Northern District of Texas
                             USDC No. 5:17-CR-28-2
                             USDC No. 5:18-CV-233


 Before Dennis, Southwick, and Engelhardt, Circuit Judges.
 Per Curiam:*
         Dewitt Donnell Bailey, federal prisoner # 55530-177, pleaded guilty,
 pursuant to a written plea agreement, to possession with intent to distribute
 28 grams or more of cocaine base, in violation of 21 U.S.C. § 841(a),
 (b)(1)(B)(iii).    The sentencing court imposed a top-of-the-guidelines


         *
          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 not be published and is not precedent except under the limited circumstances set forth in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: 19-10840      Document: 00515520356          Page: 2     Date Filed: 08/07/2020




                                   No. 19-10840


 sentence of 151 months in prison to be followed by four years of supervised
 release.   Bailey now moves for a certificate of appealability (COA) to
 challenge the district court’s denial of his 28 U.S.C. § 2255 motion in which
 he argued that he received ineffective assistance of counsel such that his
 guilty plea was rendered unknowing, unintelligent, and involuntary. Bailey
 further asserts that the district court erred in denying his § 2255 motion
 without holding an evidentiary hearing.
        To obtain a COA, a movant must make “a substantial showing of the
 denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Slack v. McDaniel,
 529 U.S. 473, 483 (2000). Bailey can satisfy this standard by “demonstrating
 that jurists of reason could disagree with the district court’s resolution of his
 constitutional claims or that jurists could conclude that the issues presented
 are adequate to deserve encouragement to proceed further.” Miller-El v.
 Cockrell, 537 U.S. 322, 327 (2003); see Slack, 529 U.S. at 484. Bailey has not
 met this standard. See Miller-El, 537 U.S. at 327.
        The motion for a COA is DENIED. Bailey’s motion to proceed in
 forma pauperis (IFP) is, likewise, DENIED. We construe Bailey’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.
        COA DENIED; IFP DENIED; AFFIRM




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