     Case: 10-50268 Document: 00511328929 Page: 1 Date Filed: 12/21/2010




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

                                                 FILED
                                                                         December 21, 2010
                                     No. 10-50268
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk




UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

versus

CRISTOBOL RODRIGUEZ-MARIN, Also Known as Cristobol Marin-Rodriguez,

                                                   Defendant-Appellant.




                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 6:08-CV-370




Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Cristobol Rodriguez-Marin, federal prisoner # 56790-180, seeks a certifi-
cate of appealability (“COA”) to appeal the denial of his 28 U.S.C. § 2255 motion.
He is incarcerated for his conviction of aiding and abetting Lizandro Gonzalez-

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50268 Document: 00511328929 Page: 2 Date Filed: 12/21/2010

                                  No. 10-50268

Rodriguez’s possession with intent to distribute at least 500 grams of metham-
phetamine.
      To obtain a COA, Rodriguez-Marin must make “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To meet that stan-
dard, he must demonstrate that “reasonable jurists could debate whether (or, for
that matter, agree that) the [§ 2255 motion] should have been resolved in a dif-
ferent manner or that the issues presented were adequate to deserve encourage-
ment to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The
COA determination requires an overview of the claims and a general assessment
of their merits. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). That threshold
inquiry does not require a showing that the appeal will succeed. Id.
      Rodriguez-Marin argues, as he did in the district court, that counsel was
ineffective for failing to call Gonzalez-Rodriguez as a witness during his trial and
that Gonzalez-Rodriguez was available and willing to testify that Rodriguez-
Marin was not involved in the offense. To support his claim, he presented the
district court with an unsworn letter from Gonzalez-Rodriguez that was written
in Spanish. The letter, which was allegedly translated into English by Gonzalez-
Rodriguez’s counsel, purportedly states that Rodriguez-Marin had nothing to do
with the offense.
      Rodriguez-Marin also provided the court with a portion of the transcript
from Gonzalez-Rodriguez’s sentencing proceeding, during which Gonzalez-Rodri-
guez stated that Rodriguez-Marin had nothing to do with the offense. Rodri-
guez-Marin also argues, as he did in the district court, that counsel was ineffec-
tive for failing to raise a Fourth Amendment objection to the drug evidence and
for failing to raise a Fourth Amendment claim on appeal.
      Rodriguez-Marin has abandoned his claims before the district court of
actual innocence, that the search and seizure of the vehicle that led to his arrest
violated the Fourth Amendment, that the government failed to prove the drug
quantity, and that counsel’s failure to raise the drug quantity issue on direct ap-

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                                  No. 10-50268

peal was plain error. See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999);
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). By failing to challenge
the district court’s determination that Gonzalez-Rodriguez’s letter was inadmis-
sible hearsay, Rodriguez-Marin has abandoned any challenge to the denial of
§ 2255 relief on his claim that counsel was ineffective for failing to introduce the
letter at trial. See Hughes, 191 F.3d at 613; Yohey, 985 F.2d at 224-25.
      Because Gonzalez-Rodriguez’s purported testimony would have been rele-
vant to and supportive of Rodriguez-Marin’s defense that he did not actually or
constructively possess the drugs recovered on the day of his arrest, reasonable
jurists could agree that the issue of whether counsel was ineffective for failing
to call Gonzalez-Rodriguez as a witness at trial is “adequate to deserve encour-
agement to proceed further.” Slack, 529 U.S. at 484. Accordingly, a COA is
GRANTED in part on that issue. Because the government was not served in the
underlying § 2255 proceeding and because the district court did not expressly
address Rodriguez-Marin’s claim that counsel was ineffective for failing to call
Gonzalez-Rodriguez as a witness, we vacate the judgment to the extent it denied
§ 2255 relief on that claim and remand for consideration of the issue and, if nec-
essary, an evidentiary hearing. See Whitehead v. Johnson, 157 F.3d 384, 388
(5th Cir. 1998).
      The district court did not address Rodriguez-Marin’s claim that counsel
was ineffective for failing to raise a Fourth Amendment claim before, during, or
after trial and on direct appeal. A COA is also GRANTED in part on that issue.
See United States v. Daly, 823 F.2d 871, 872 (5th Cir. 1987). On remand, there-
fore, the district court also should consider the issue of whether counsel was inef-
fective for failing to raise a Fourth Amendment claim. Rodriguez-Marin’s motion
for a COA is DENIED in all other respects. His motion for leave to proceed in
forma pauperis on appeal is GRANTED. We express no opinion on what deci-
sions the district court should make on remand.



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