IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-50764
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TOD ANTHONY HIGGINS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-98-CA-230
USDC No. W-97-CR-52-1
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January 18, 1999
Before DAVIS, DUHE’, and PARKER, Circuit Judges.
PER CURIAM:*
Tod Anthony Higgins, federal prisoner #78665-080, seeks a
certificate of appealability (COA) to appeal from the denial of
his motion for relief pursuant to 28 U.S.C. § 2255. Higgins
moves for leave to proceed in forma pauperis (IFP), for
production of transcripts at government expense, and for
appointment of counsel. Higgins’s motion for leave to proceed
IFP is GRANTED. His motions production of transcripts for
appointment of counsel are DENIED.
*
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that this opinion should not be published and is not precedent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. 98-50764
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Higgins contends that the district court incorrectly based
the denial of his § 2255 motion on the waiver provision in his
plea agreement; that the warrant for the search of his residence
described the wrong residence and bore another address; that his
conviction violated the Double Jeopardy Clause because local
police confiscated his property before he was convicted; that the
confiscation of his property violated the Due Process Clause; and
that he received ineffective assistance of counsel.
“A certificate of appealability may issue . . . only if the
applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). When the
district court’s denial of the motion was based upon a non-
constitutional ground such as the waiver provision in Higgins’s
plea agreement, we employ a two-step process. Murphy v. Johnson,
110 F.3d 10, 11 (5th Cir. 1997). First, we must decide if
Higgins has made a credible showing that the district court’s
determination of the non-constitutional ground was erroneous.
Second, we must determine if Higgins’s underlying claim that he
was denied a constitutional right is debatable among reasonable
jurists. Id.
In his plea agreement, Higgins waived the right to challenge
his sentence, with some exceptions. He did not waive the right
to challenge his conviction. Higgins’s contentions regarding
double jeopardy and the warrant in his case implicate the
validity of his conviction. Higgins did not waive the right to
assert those issues by virtue of his plea agreement. Higgins’s
ineffective-assistance contentions implicate the validity of his
No. 98-50764
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conviction and his sentence. Higgins reserved the right to
assert any ineffective-assistance or other constitutional
contentions regarding his sentence. Higgins did not waive the
right to raise his ineffective-assistance issues in § 2255
proceedings. The wavier provision in Higgins’s plea agreement
did not preclude him from raising any of the issues on which he
seeks a COA. Higgins therefore has made a substantial showing
that the district court erred by denying him § 2255 relief based
solely on the waiver provision.
Had the district court addressed Higgins’s underlying
substantive contentions, we could proceed to address whether
Higgins has made a substantial showing of the denial of a
constitutional right. Whitehead v. Johnson, 157 F.3d 384, 387
(5th Cir. 1998). The district court, however, relied solely on
waiver when denying Higgins’s § 2255 motion and did not indicate
on what ground it denied a COA. The COA requirement is
jurisdictional, and the district court must deny a COA before we
may consider whether to grant one. Muniz v. Johnson, 114 F.3d
43, 45 (5th Cir. 1997).
Muniz’s recognition that the COA requirement is
jurisdictional as to each issue requires that, once we
conclude that the district court erred in dismissing an
application because of [purely procedural grounds
without consideration of the underlying merits], we
vacate and remand to the district court to address the
merits of the habeas claims in the first instance.
Whitehead, 157 F.3d at 388.
Higgins’s motion for a COA is GRANTED. His case is VACATED
and REMANDED for consideration of Higgins’s underlying claims for
§ 2255 relief.
No. 98-50764
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