Filed: May 09, 2000
Latest Update: Mar. 02, 2020
Summary: 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
Summary: 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...
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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this opinion should not be published and is not precedent except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.