Pete Villegas v. William Stephens, Director , 631 F. App'x 213 ( 2015 )


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  •      Case: 14-20667      Document: 00513275954         Page: 1    Date Filed: 11/18/2015
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 14-20667                               FILED
    November 18, 2015
    Lyle W. Cayce
    PETE JOE VILLEGAS,                                                               Clerk
    Petitioner-Appellant
    v.
    WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
    JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
    Respondent-Appellee
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 4:07-CV-4483
    Before GRAVES, HIGGINSON, and COSTA, Circuit Judges.
    PER CURIAM: *
    Pete Joe Villegas moves for a certificate of appealability (COA) to appeal
    the district court’s merits dismissal of his 
    28 U.S.C. § 2254
     petition that
    challenges the revocation of his parole on a state conviction for a narcotics
    offense, denial of his motion for an order directing the clerk not to delay mailing
    court orders, and denial of postjudgment relief under Federal Rules of Civil
    Procedure 15(a) and 59(e). The district court denied a COA to appeal the
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-20667     Document: 00513275954     Page: 2   Date Filed: 11/18/2015
    No. 14-20667
    summary judgment but did not address the need for a COA in connection with
    the other rulings.
    To get a COA, Villegas must make “a substantial showing of the denial
    of a constitutional right.” 
    28 U.S.C. § 2253
    (c)(2); see Miller-El v. Cockrell, 
    537 U.S. 322
    , 336 (2003). A COA will issue if “reasonable jurists could debate
    whether (or, for that matter, agree that)” Villegas’s § 2254 petition “should
    have been resolved in a different manner or that the issues presented were
    adequate to deserve encouragement to proceed further.” Miller-El, 
    537 U.S. at 336
     (internal quotation marks and citation omitted).
    A COA is required to appeal the denial of a motion to amend or alter a
    judgment in a habeas case. Ochoa Canales v. Quarterman, 
    507 F.3d 884
    , 887-
    88 (5th Cir. 2007). Because of the lack of a COA ruling by the district court on
    this issue, we may assume without deciding that we lack jurisdiction over this
    issue. See Rule 11(a), Rules Governing § 2254 Cases in the United States
    District Courts. However, we will decline to remand in order for the district
    court to make the COA determination in the first instance if remand would be
    futile and a waste of judicial resources. See United States v. Alvarez, 
    210 F.3d 309
    , 310 (5th Cir. 2000).
    To the extent that Villegas’s motion to alter the judgment seeks to undo
    the district court’s denial of habeas relief, it runs afoul of the prohibition
    against unauthorized successive petitions. See Gonzalez v. Crosby, 
    545 U.S. 524
    , 532 (2005); Williams v. Thaler, 
    602 F.3d 291
    , 312 (5th Cir. 2010). The
    district court’s summary judgment was based on a determination that no
    grounds for habeas relief existed and was therefore on the merits.            See
    Gonzalez, 
    545 U.S. at
    532 & n.4. Because we had not authorized Villegas to
    bring a successive application, the district court had no jurisdiction to
    entertain a motion to set aside the denial of habeas relief.        See Crone v.
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    Cockrell, 
    324 F.3d 833
    , 836-38 (5th Cir. 2003). No jurist of reason would debate
    whether, or agree that, Villegas should be encouraged to proceed further with
    this claim. See Miller-El v. Cockrell, 
    537 U.S. at 336
    .
    To the extent that the motion to alter the judgment and to amend the
    petition challenges a defect in the integrity of the proceedings, Villegas needs
    a COA to proceed. See § 2253(c)(1)(B); see also Gonzalez, 
    545 U.S. at
    532 & n.
    5; Cardenas v. Thaler, 
    651 F.3d 442
    , 443 (5th Cir. 2011). However, we can
    discern no legal points arguable on their merits in connection with this claim,
    which is therefore frivolous. See Howard v. King, 
    707 F.2d 215
    , 220 (5th Cir.
    1983). Because his appeal on this point is baseless, no jurist of reason would
    debate whether, or agree that, Villegas should be encouraged to proceed
    further with it. See Miller-El v. Cockrell, 
    537 U.S. at 336
    . Consequently,
    remand would be futile. See Alvarez, 
    210 F.3d at 310
    .
    Villegas requests a COA to appeal the district court’s rejection of his
    motion for an order directing the clerk to refrain from delaying the mailing of
    court orders. It is not clear that this order is a final order “in a proceeding
    under section 2255” that requires a COA to appeal. § 2253(c)(1)B); see Ochoa
    Canales, 
    507 F.3d at 888
    . In any event, the record shows that the clerk
    complied with Federal Rule of Civil Procedure 77(d)(1). Thus, the claim that
    it was error not to direct the clerk to avoid delay in mailing notice of orders is
    patently frivolous. See Howard, 
    707 F.2d at 220
    . Consequently, no jurist of
    reason would debate whether, or agree that, Villegas should be encouraged to
    proceed further with it. See Miller-El, 
    537 U.S. at 336
    . Remand would thus
    be futile. See Alvarez, 
    210 F.3d at 310
    .
    Villegas argues that he has made a debatable showing that he was
    denied a constitutional right when the district court dismissed his petition on
    summary judgment.       Villegas asserts that the district court abused its
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    No. 14-20667
    discretion by preventing him from amending his complaint in 2007 and 2008
    before judgment was entered. He does not argue that the petition states a
    claim; instead, he repeatedly asserts that the unamended petition is fatally
    defective. Villegas represented to the district court, when seeking to amend
    before judgment was entered, that his purpose was merely to provide
    additional specific factual allegations in support of his claim and additional
    record references to assist the court.      Villegas advances no legal points
    arguable on their merits in support of his claim that he should have been
    allowed to amend his petition prior to entry of judgment. See Howard, 
    707 F.2d at 220
    ; cf. Henderson v. Cockrell, 
    333 F.3d 592
    , 605 (5th Cir. 2003).
    Additionally, Villegas cites no authority establishing that he is entitled to a
    COA in connection with his postjudgment amended petition, which was filed
    without leave of court or consent of the respondent. This claim, too, is frivolous.
    See Howard, 
    707 F.2d at 220
    .
    Villegas’s motion for remand to challenge the constitutionality of
    § 2253(c)(2) is unavailing. Villegas offers no convincing reason why he did not
    present this challenge in the district court, and he cites no authority from this
    circuit entitling him to a second chance to do so.
    The appeal is DISMISSED for lack of jurisdiction. Villegas’s motion for
    a COA is DENIED as moot. Villegas’s motion for remand to challenge the
    constitutionality of § 2253(c)(2) is DENIED also.
    4