IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-50534

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

HUGO ROBERTO ESTRADA,

Defendant-Appellant

Appeals from the United States District Court

for the Western District of Texas

USDC No. 3:13-CV-94

Before DENNIS, SOUTHWICK, and HAYNES, Circuit Judges.

PER CURIAM:*

Hugo Roberto Estrada, federal prisoner # 80887-280, seeks a certificate 

of appealability (COA) to appeal the denial of his 28 U.S.C. § 2255 motion. 

Estrada pleaded guilty to conspiracy to possess with intent to distribute more 

than 1,000 kilograms of marijuana. 

To obtain a COA, Estrada must make “a substantial showing of the 

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When a district court 

has rejected a constitutional claim on the merits, a COA will be granted if 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.

United States Court of Appeals

Fifth Circuit

FILED

July 14, 2015

Lyle W. Cayce

Clerk

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movant shows that reasonable jurists would find the district court’s 

assessment of the claim debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 

484 (2000). A movant satisfies this standard by showing that “jurists of reason 

could disagree with the district court’s resolution of his constitutional claims 

or that jurists could conclude the issues presented are adequate to deserve 

encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 

(2003). That threshold inquiry does not require a showing that the appeal will 

succeed. Id.

Estrada argues, as he did in the district court, that counsel rendered 

ineffective assistance by failing to advise him of his constitutional right to a 

speedy trial and by failing to file a motion to dismiss based on speedy-trial

grounds. He also contends that the district court erroneously construed his 

ineffective assistance claim as based on a purported violation of the Speedy 

Trial Act. He argues that his claim is founded on the Sixth Amendment right 

to a speedy trial and is not, as the district court determined, based on any 

statutory ground. Finally, he asserts that the district court erred by failing to 

hold an evidentiary hearing. 

To the extent that the district court construed Estrada’s ineffective 

assistance claim as based on an alleged violation of the Speedy Trial Act, the 

district court’s ruling is debatable by reasonable jurists. See Slack, 529 U.S. 

at 484. Estrada’s § 2255 motion and brief in support indicate that his 

ineffective assistance claim was based on a purported violation of his Sixth 

Amendment right to a speedy trial. The district court did not distinguish 

between a claim under the Speedy Trial Act and a constitutional speedy trial 

claim. 

However, even if the district court’s ruling is debatable, we can only 

grant a COA “if reasonable jurists would find it debatable that the petition 

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states a valid claim of the denial of a constitutional right.” Houser v. Dretke, 

395 F.3d 560, 561 (5th Cir. 2004). The Sixth Amendment guarantees a 

defendant the right to a speedy trial. Barker v. Wingo, 407 U.S. 514, 515 

(1972). The constitutional right to a speedy trial attaches when a person is 

arrested, indicted, or otherwise formally charged. United States v. SernaVillarreal, 352 F.3d 225, 230 (5th Cir. 2003). To determine whether the right 

to a speedy trial has been denied, a court must balance four factors: (1) the 

length of the delay; (2) the reason for the delay; (3) the defendant’s assertion 

of his speedy-trial rights; and (4) the prejudice to the defendant resulting from 

the delay. Goodrum v. Quarterman, 547 F.3d 249, 257 (5th Cir. 2008) (citing 

Barker, 407 U.S. at 530).

The record reflects that there was an approximately 25-month delay 

between the time when the indictment was returned and when Estrada was 

arrested. As a general rule, we presume a 12-month delay between indictment 

and trial to be prejudicial, thus requiring consideration of the other Barker

factors. Robinson v. Whitley, 2 F.3d 562, 568 (5th Cir. 1993). Turning to the 

next factor, the record is inconclusive as to the reasons for the delay between 

indictment and arrest. The presentence investigation report, however, 

appears to indicate that Estrada was under surveillance at various points after 

his indictment but before his arrest. At the very least, there is some question 

as to whether the Government “diligently pursue[d] [Estrada] from indictment 

to arrest.” See United States v. Bishop, 629 F.3d 462, 466 (5th Cir. 2010). 

Further, the record also reflects that Estrada may have been prejudiced by the 

delay. Specifically, the record shows that Estrada’s sentence may have been 

based upon drug quantities that were seized after the June 2009 indictment. 

The foregoing analysis is intended only to demonstrate that based on the 

record, the issues presented were adequate to deserve encouragement to 

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proceed further. See Slack, 529 U.S. at 484. We express no view on the merits 

of Estrada’s constitutional claim. 

Because the district court did not expressly address Estrada’s Sixth 

Amendment claim that counsel was ineffective for failing to advise him of his 

right to a speedy trial and by failing to file a motion to dismiss based on 

constitutional speedy-trial grounds, reasonable jurists could agree that the 

issue of counsel’s effectiveness is “adequate to deserve further encouragement.” 

Id. Accordingly, a COA is GRANTED on that issue. Because the district court 

did not expressly address Estrada’s claim that counsel was ineffective for 

failing to discuss or pursue the constitutional speedy-trial claim, we VACATE 

the judgment of the district court and REMAND for consideration of the issue 

and, if necessary, an evidentiary hearing. See Whitehead v. Johnson, 157 F.3d 

384, 388 (5th Cir. 1998). 

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