Alvarado v. Cockrell

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 10, 2002
• Docket: 01-20829
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-20829 Summary Calendar

ISAAC MANUEL ALVARADO,

Petitioner-Appellant,

versus

JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CV-2958 -------------------- April 9, 2002

Before Before DAVIS, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Isaac Manuel Alvarado, Texas prisoner #825846, has moved

this court for a certificate of appealability (“COA”) to appeal

the summary-judgment denial of his federal habeas corpus

application filed pursuant to 28 U.S.C. § 2254. In his petition

Alvarado argued that (1) his plea was rendered involuntary by

counsel’s promise of a 10-year sentence; (2) counsel labored

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 01-20829 -2-

under a conflict of interest because counsel acted as his

interpreter during the guilty-plea proceedings; (3) counsel used

fraud and extortion to force him to plead guilty; and (4) counsel

failed to conduct any pretrial investigation. He also complained

of infirmaries in his state habeas proceedings.

A COA motion may be granted only if the petitioner makes a

substantial showing of the denial of a constitutional right. See

28 U.S.C. § 2253(c)(2). This requires the petitioner to

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, 483-84 (2000).

Alvarado has shown that reasonable jurists would find the

district court’s assessment of his claim that his plea was

rendered involuntary by counsel’s promise of a 10-year sentence

to be debatable or wrong. The district court, in rejecting this

claim, improperly afforded the state habeas court’s findings a

presumption of correctness. The state-court findings should not

have been afforded a presumption of correctness as the state

court’s factual findings were based on a paper record, rather

than a live evidentiary hearing, there were conflicting

affidavits, and the trial court judge in the state habeas action

was not the same judge who presided over Alvarado’s guilty-plea

hearing. See Nethery v. Collins, 993 F.2d 1154, 1157 n.8 (5th

Cir. 1993). No. 01-20829 -3-

We also conclude that the affidavit of Jose Antonio Villalta

raised a genuine issue of material fact with regard to whether

counsel had promised Alvarado a specific sentence, thus

precluding the grant of summary judgment on this issue. See FED.

R. CIV. P. 56(e). Accordingly, the district court’s order is

VACATED and the case REMANDED to the district court to conduct an

evidentiary hearing on this issue. COA is denied as to all

remaining issues.