July 14, 2021 opinions

Designated for publication

  • U.S. v. Castro, 18-10137, appeal from N.D. Tex.
    • Oldham, J. (Ho, Oldham, Wilson), habeas corpus
    • Vacating certificate of appealability and dismissing appeal. “A judge on our court granted Adrian Castro a certificate of appealability. It’s undisputed that the COA is invalid under 28 U.S.C. § 2253(c)(2)–(3) because it fails to specify a constitutional issue. The only question is what we should do about it. We vacate the COA and dismiss the appeal.”
    • Petitioner pleaded guilty to multiple counts arising from a spree of violent armed thefts against postal workers. He was sentenced to four concurrent 168-month prison terms. He did not appeal. Twelve years later he filed a habeas petition under § 2255, past the one-year limitations period under AEDPA. The district court denied the petition and denied COA, rejecting the petitioner’s argument for a new one-year period due to the holding in Johnson v. United States, 576 U.S. 591 (2015), that the residual clause of 18 U.S.C. § 924(e)(2)(B) was unconstitutionally vague; the district court held that § 924(e)(2)(B) was inapplicable to petitioner’s conviction under § 924(c)(3)(B). One judge of the Fifth Circuit issued a COA on the single issue of “whether the district court erred by denying Castro’s § 2255 motion as untimely.”
    • The Court noted that AEDPA “elevated the standard [for obtaining review of a habeas decision] and limited appeals to only those cases in which an applicant makes ‘a substantial showing of the denial of a constitutional right,’ 28 U.S.C. § 2253(c)(2).” Because the COA that had been granted in this case “says nothing at all about the Constitution,” the Court held that the COA was invalid.


  • Black v. Griffin, 19-30932, appeal from M.D. La.
    • per curiam (Southwick, Oldham, Wilson), § 1983
    • Affirming dismissal of former prisoner’s § 1983 claim as untimely.
  • Figueroa-Diaz v. Garland, 19-60319, petition for review of BIA order
    • per curiam (Wiener, Haynes, Costa), immigration
    • On remand from U.S. Supreme Court, remanding to BIA to reconsider in light of Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021).
  • U.S. v. Rodriguez, 20-10178, appeal from N.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Anderson v. Martco L.L.C., 20-30198, appeal from W.D. La.
    • per curiam (Haynes, Willett, Ho), Family and Medical Leave Act, Title VII
    • Affirming denial of motion to reconsider summary judgment dismissing plaintiff’s FMLA and Title VII claims.
  • U.S. v. Madrid, 20-40031, appeal from E.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Lira-Salinas, 20-40734, appeal from S.D. Tex.
    • per curiam (Costa, Ho, Duncan), criminal, sentencing
    • Affirming 168-month sentence on conviction of possession with intent to distribute 50 grams or more of methamphetamine and 500 grams or more of a mixture and substance containing a detectable amount of methamphetamine and to conspiracy to do the same.
  • U.S. v. Oyedepo, 21-10153, appeal from N.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.