United States v. Dennis ( 2021 )

Case: 20-10731 Document: 00515931866 Page: 1 Date Filed: 07/09/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 9, 2021
No. 20-10731 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Benny Dennis,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:17-CV-2
Before Elrod, Oldham, and Wilson, Circuit Judges.
Per Curiam:*
Benny Dennis, federal prisoner number # 48551-177, applies for a
certificate of appealability (COA) following the district court’s denial of his
28 U.S.C. § 2255 motion, wherein he sought to challenge his conviction on
one count of possession with intent to distribute methamphetamine. Dennis
argues that his guilty plea was not knowingly and voluntarily entered due to
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-10731 Document: 00515931866 Page: 2 Date Filed: 07/09/2021
No. 20-10731
ineffective assistance of counsel, and that the district court failed to hold an
evidentiary hearing.
To obtain a COA, a defendant must first make “a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When, as
here, the district court denies a COA on the merits, the movant must
demonstrate that “reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). Dennis has made no such showing.
Accordingly, his motion for a COA is DENIED. Dennis’s motion for the
appointment of counsel is also DENIED.
As Dennis fails to make the required showing for a COA on his
constitutional claim, “we have no power to say anything about his request for
an evidentiary hearing.” United States v. Davis, 971 F.3d 524, 534-35 (5th
Cir. 2020), petition for cert. filed (U.S. Mar. 18, 2021) (No. 20-7553).
2