719 F.3d 422
5th Cir.
2013

UNITED STATES of America, Plaintiff-Appellee v. Debra Renee RATLIFF, Defendant-Appellant.

No. 12-50108.

United States Court of Appeals, Fifth Circuit.

June 19, 2013.

422-424

court abused its discretion here, however, because this condition was substantively unreasonable.

In the district court, Windless argued that this restriction on “direct or indirect contact” swept so broadly that it would effectively prohibit him from going to the grocery store unaccompanied. The district court did not express disagreement with that understanding. Nor can we. A restriction of this breadth works a “greater deprivation of liberty than is reasonably necessary”22 where, as here, a defendant is being sentenced for failing to register as a sex offender; the offense that required him to register is not of recent origin; and since that offense, he has committed no other crimes against minors,23 and the evidence suggests that he has failed to register only twice before. Although it does not affect our holding, we further note that here, the defendant committed the underlying sex offense when he was only fifteen years old, and that this condition would prevent him from ever seeing his minor children without the supervision of someone approved by a probation officer.

Circumstances may, of course, permit a sentencing court to limit an offender‘s access to places where children are likely to be unsupervised or poorly supervised. It may be reasonable to bar an offender from initiating unsupervised or poorly supervised contact with others’ children and reasonable to require him to report contact that children initiate. But to forbid all “indirect” contact works a serious restriction on liberty, making a trip to the grocery store or a place of worship a trip that may end in imprisonment via revocation sentence. We trust that the district court will carefully address these considerations on remand if it decides that, with bare arrest records out of mind, such conditions are appropriate at all.24

*

*

*

We VACATE imposition of the mental-health treatment condition and REMAND for resentencing. We REVERSE imposition of the “no direct or indirect contact” condition, which the district court may not impose (as currently phrased) on remand.

Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney‘s Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.

Evers Jason Leach, Law Office of E. Jason Leach, Odessa, TX, for Defendant-Appellant.

Before ELROD and HIGGINSON, Circuit Judges, and MARTINEZ, District Judge.*

HIGGINSON, Circuit Judge.

Debra Ratliff appeals from the district court‘s denial of her § 2255 motion to vacate her conviction. The lone issue preserved for review is whether her trial attorney‘s failure to file a motion to suppress constituted ineffective assistance of counsel (“IAC“) and rendered involuntary her guilty plea. To prove that claim, Ratliff was required to show that (1) a suppression motion would have been meritorious, (2) her counsel‘s failure to file one was objectively unreasonable (the “performance” prong), and (3) but for her counsel‘s deficient performance in that regard, she would not have pleaded guilty (the “prejudice” prong). Ward v. Dretke, 420 F.3d 479, 487-88 & n. 19 (5th Cir.2005). Adopting the report and recommendation of a magistrate judge, the district court rejected that claim, ruling that Ratliff failed to make the required showing as to any of its elements, and correspondingly denied and dismissed her § 2255 motion. The district court went on to grant a certificate of appealability (“COA“) on the first issue of whether Ratliff‘s suppression motion would have been meritorious, finding the issue debatable among reasonable jurists. The district court did not indicate whether it intended for the COA to include the independently dispositive issues of performance and prejudice, and Ratliff did not ask this court to expand the scope of the COA to include those issues.

We reiterate that “[a] certificate of appealability may issue,” pursuant to 28 U.S.C. § 2253(c), “only if the applicant has made a substantial showing of the denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 481 (120 S.Ct. 1595, 146 L.Ed.2d 542) (2000) (emphasis added). Where a federal habeas corpus petition, under 28 U.S.C. § 2244, or, as here, a motion to vacate, under 28 U.S.C. § 2255, raises a constitutional claim with multiple elements, a COA may issue with respect to that claim only if the defendant makes a substantial showing as to each element. See Blue v. Thaler, 665 F.3d 647, 662 (5th Cir.2011) (“Blue is entitled to a COA on his Atkins claim only if he can make a substantial showing that he has been denied his constitutional right to be exempt from execution due to mental retardation. To make that showing, he must satisfy all three elements of the Briseño test.... [B]ecause Blue has conceded that he cannot show that he suffers from significant limitations in adaptive functioning[—Briseño prong two—]reasonable jurists would not debate the correctness of the district court‘s conclusion that it was objectively reasonable for the [Texas Court of Criminal Appeals] to determine that he is not mentally retarded. We must deny Blue‘s motion for a COA on this issue.“); id. (“If a district court found that a habeas petitioner‘s Strickland claim failed because he could show neither deficient performance nor prejudice, a request for a COA only as to the deficiency issue would be futile.“); cf. Phelps v. Alameda, 366 F.3d 722, 729, 730 (9th Cir.2004) (noting that district court‘s grant of COA on procedural issue, but denial of COA on merits issue, “present[ed] advisory-opinion problems” because resolution of the procedural issue would not have “any effect[]” on petitioner‘s entitlement to habeas relief).

We VACATE the COA and REMAND for clarification as to whether Ratliff has made a substantial showing of the denial of her Sixth Amendment right to effective assistance of counsel and is entitled to a COA on that issue. See Berthoff v. United States, 201 F.3d 426, 1999 WL 1295839, at *1 (1st Cir.1999) (per curiam) (unpublished table decision) (vacating COA and remanding for clarification where, as here, “[t]he thrust of the court‘s remarks in issuing the certificate suggests a desire for additional guidance” on a constitutional question, but the wording of the COA leaves “some doubt as to the precise issue(s) on which the certificate was granted“); Gonzalez v. Thaler, U.S. —, 132 S.Ct. 641, 651 & n. 7, 181 L.Ed.2d 619 (2012) (noting that circuit courts “regularly” remand for clarification when a COA fails to indicate a constitutional issue).

* District Judge of the Western District of Texas, sitting by designation.

Notes

22
Weatherton, 567 F.3d at 153 (internal quotation marks omitted) (citation omitted).
23
We mean this colloquially and express no opinion concerning whether failure to register is “an offense perpetrated against a minor.” U.S.S.G. § 5D1.2 cmt. 1.
24
See United States v. Goodwin, 12-2921, 717 F.3d 511, 2013 WL 1891302 (7th Cir. May 8, 2013) (“In assessing the appropriateness of special conditions, it ... is useful to consider the rehabilitative objectives that supervised release serves. Placing unduly harsh conditions on supervised release would, instead of facilitating an offender‘s transition back into the everyday life of the community, be a significant barrier to a full reentry into society.” (internal quotation marks omitted) (citation omitted) (alteration marks removed)).
Read the detailed case summary