United States v. Acosta

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 9, 2000
• Docket: 99-50921
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-50921

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOEL ACOSTA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-95-CV-388-H USDC No. EP-93-CR-246-1-H -------------------- May 8, 2000

Before SMITH, BARKSDALE, and PARKER, Circuit Judges.

PER CURIAM:*

Joel Acosta, federal prisoner #62631-080, seeks to appeal

from the denial of his motion for relief from sentence pursuant

to 28 U.S.C. § 2255. The district court certified that Acosta’s

appeal was not taken in good faith, granted him leave to appeal

in forma pauperis (IFP) for the purpose of challenging the bad-

faith determination, and assessed the appellate filing fee

against Acosta pursuant to the provisions of the Prison

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-50921 -2-

Litigation Reform Act (PLRA), 28 U.S.C. § 1915(b). We construe

Acosta’s appellate brief as a motion to proceed IFP on appeal,

challenging the bad-faith certification. Baugh v. Taylor, 117

F.2d 197, 202 (5th Cir. 1997).

The PLRA’s financial screening and assessment provisions do

not apply to § 2255 motions and appeals. United States v. Cole,

101 F.3d 1076, 1077 (5th Cir. 1996). The district court

therefore erred by assessing appellate filing fees against Acosta

pursuant to the PLRA. The portion of the certification order

assessing Acosta pursuant to the PLRA therefore is VACATED and

the district court is DIRECTED to refund to Acosta any portion of

the appellate filing fee that has been paid.

Moreover, because the PLRA’s screening and assessment

provisions do not apply to Acosta, the district court erred by

granting Acosta IFP for the purpose of challenging the bad-faith

determination. The proper disposition would have been an order

certifying that the appeal was in bad faith, denying IFP on

appeal, and doing no more. See Borning v. Hymel, 764 F.2d 1041,

1041-42 (5th Cir. 1985). The grant of IFP for the limited

purpose of challenging the certification therefore is VACATED.

Acosta contends that he received ineffective assistance of

counsel because counsel failed to file any pretrial motions

raising an entrapment defense; failed to develop facts suggesting

that he lacked the mens rea needed to commit the crimes of which

he was convicted; failed to move for the suppression of evidence

because he was stopped and arrested without probable cause;

failed to challenge the pretextual stop of his car; failed to No. 99-50921 -3-

advise him regarding the Sentencing Guidelines or possible

sentences; failed to explain the benefits of pleading guilty; and

erred by eliciting his testimony about a 1990 incident involving

Investigator Johnny Paniagua. Acosta’s contentions are

unavailing.

Police had ample cause for the stop and search of Acosta’s

car and for his arrest. United States v. Hensley, 469 U.S. 221,

232 (1985); United States v. Ibarra-Sanchez, 199 F.3d 753, 759

(5th Cir. 1999). Counsel was not ineffective for failing to

raise a probable-cause challenge. Paniagua’s testimony would

have been admissible to impeach Acosta’s testimony that he did

not smell marijuana in the car he was driving and had never been

exposed to that smell and was relevant to Acosta’s intent and

knowledge. FED. R. EVID. 404(b), 608(b). Counsel was not

ineffective for anticipating and attempting to blunt Paniagua’s

testimony. Acosta’s allegation in the district court that

counsel did not advise him regarding the Sentencing Guidelines

and possible sentences was conclusional and did not give rise to

any habeas issue. Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir.

1983). Acosta has failed to demonstrate plain error regarding

his remaining issues, which he raised for the first time on

appeal. United States v. McPhail, 112 F.3d 197, 199 (5th Cir.

1997).

IFP DENIED; ASSESSMENT VACATED; REFUND DIRECTED; LIMITED IFP

GRANT VACATED; APPEAL DISMISSED. 5TH CIR. R. 42.2.