July 23, 2021 opinions

Designated for publication

  • Texas v. U.S., 19-10011, appeal from N.D. Tex.
    • per curiam (King, Elrod, Engelhardt), Affordable Care Act
    • On remand from the U.S. Supreme Court, which had vacated the Fifth Circuit panel’s opinion upholding states’ challenge to the ACA, Court entered order vacating district court’s opinion and remanding to district court to dismiss suit.
  • U.S. v. Alaniz, 19-40486, appeal from S.D. Tex.
    • Haynes, J. (Haynes, Graves, Willett), Graves, J., dissenting; habeas corpus
    • Affirming district court’s dismissal of § 2255 petition claims that original counsel rendered ineffective assistance in his failure to advise and failure to consult with defendant as to his appeal rights on direct appeal, as untimely because they were not related to the IAC claim of failure to file the direct appeal originally brought by petitioner and had only been brought for the first time in a post-hearing memorandum.
    • The Court held that the failure-to-advise and failure-to-consult claims raised in the post-hearing memorandum did not relate back to the timely filed failure-to-file claim. “Alaniz’s failure-to-file claim is limited in time and fact to one specific event: the entire claim turns on whether one of his attorneys heard and then failed to follow Alaniz’s alleged whisper at the sentencing hearing. By contrast, his failure-to-advise and failure-to-consult claims … turn on his attorneys’ conduct during numerous meetings before and after sentencing.”
    • Judge Graves dissented. He opined, “The claims here are clearly tied to a common core of operative facts. Alaniz’s failure-to-file claim is not limited in time and fact to only the specific event of whether counsel heard him say he wanted to appeal. Even if Alaniz never told him that he wanted to appeal, counsel had the obligation to advise Alaniz of his rights and discuss whether he wanted to appeal. Had the attorney fulfilled his obligations as counsel, it would not have mattered whether he heard Alaniz.”

Unpublished

  • Warterfield v. Lumpkin, 18-40936, appeal from E.D. Tex.
    • per curiam (Higginbotham, Jones, Willett), habeas corpus
    • Dismissing appeal of interlocutory order.
  • U.S. v. Howard, 20-10614, appeal from N.D. Tex.
    • per curiam (Higginbotham, Jones, Willett), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Matthews, 20-10949, appeal from N.D. Tex.
    • per curiam (Graves, Willett, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Chaparo-Osorio, 20-20061, appeal from S.D. Tex.
    • per curiam (King, Costa, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Burns, 20-50681, appeal from W.D. Tex.
    • per curiam (Davis, Stewart, Dennis), criminal, First Step Act
    • Limited remand for district court to enter reasons for denial of motion for sentence reduction under First Step Act.
  • U.S. v. Hernandez, 20-50831, appeal from W.D. Tex.
    • per curiam (Wiener, Dennis, Haynes), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • U.S. v. Medina, 21-10240, appeal from N.D. Tex.
    • per curiam (Davis, Jones, Elrod), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Vargas-Luna, 21-40057, appeal from S.D. Tex.
    • per curiam (Davis, Stewart, Dennis), criminal, sentencing
    • Granting summary affirmance of 108-month sentence on conviction of conspiring to possess with intent to distribute five kilograms or more of cocaine.