     Case: 19-10425      Document: 00515378453         Page: 1    Date Filed: 04/10/2020




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

                                                                            FILED
                                      No. 19-10425                      April 10, 2020
                                                                       Lyle W. Cayce
UNITED STATES OF AMERICA,                                                   Clerk


                                                 Plaintiff-Appellee

v.

BRIAN MATTHEW BROWN, also known as Downtown,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:18-CV-951
                             USDC No. 4:16-CR-132-2


Before DENNIS, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Brian Matthew Brown, federal prisoner # 54032-177, pleaded guilty to
conspiracy to possess with intent to distribute a controlled substance in
violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(B).               The district court
sentenced Brown to 293 months of imprisonment followed by four years of
supervised release. Brown moves for a certificate of appealability (COA) to
challenge the district court’s denial 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-10425    Document: 00515378453     Page: 2   Date Filed: 04/10/2020


                                 No. 19-10425

      Brown claims that his guilty plea was not knowingly, intelligently, and
voluntarily entered as a result of ineffective assistance of counsel. According
to Brown, his attorney told him that if he pleaded guilty, he would receive a
15-year sentence. He states that but for counsel’s incorrect prediction of a 15-
year sentence, he would not have pleaded guilty and would have insisted on
going to trial.
      To obtain a COA, Brown 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). Brown has
failed to make the showing necessary to obtain a COA, and a COA is denied.
      With respect to Brown’s challenge to the district court’s denial of his
§ 2255 motion without an evidentiary hearing, a COA is not required to appeal
the denial of an evidentiary hearing in a federal § 2255 proceeding.
See Norman v. Stephens, 817 F.3d 226, 234 (5th Cir. 2016). We therefore
construe his motion for a COA on this issue as a direct appeal of the district
court’s denial of an evidentiary hearing.
      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 an abuse of discretion, Brown must
come forward with “independent indicia of the likely merit of [his] allegations.”
Id. at 442 (internal quotation marks and citation omitted). Brown has not
shown, for the reasons discussed above, that he had a meritorious claim for
relief under § 2255. Accordingly, the district court’s denial of Brown’s § 2255




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       Case: 19-10425   Document: 00515378453   Page: 3   Date Filed: 04/10/2020


                                 No. 19-10425

motion without an evidentiary hearing is affirmed. See Norman, 817 F.3d at
234.
        COA DENIED; AFFIRMED.




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