IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-21088
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARKUS LEONARD REECE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-98-CV-3399
USDC No. H-96-CR-74-1
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August 31, 1999
Before JOLLY, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
Marcus Leonard Reece requests this court to grant him a
certificate of appealability (COA) to appeal the district court’s
denial of his 28 U.S.C. § 2255 motion. Reece argues that his
counsel was ineffective during plea bargaining and at sentencing.
A COA will issue only if the applicant has made a
substantial showing of the denial of a constitutional right. 28
U.S.C. § 2253(c)(2).
In reviewing a district court’s denial of a § 2255 motion,
*
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that this opinion should not be published and is not precedent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. 98-21088
-2-
this court examines the factual findings for clear error and
conclusions of law de novo. United States v. Faubion, 19 F.3d
226, 228 (5th Cir. 1994). The district court must set out its
findings of fact and conclusions of law when ruling on a § 2255
motion unless the record conclusively shows that a defendant is
entitled to no relief. United States v. Daly, 823 F.2d 871, 872
(5th Cir. 1987).
Because the record does not conclusively show that Reece is
entitled to no relief, the district court erred in failing to
provide findings and conclusions in support of its denial of
Reece’s § 2255 motion. Therefore, COA is GRANTED, the district
court’s order is VACATED, and the case REMANDED for the
preparation of findings and conclusions of law.
Because Reece has raised factual issues in connection with
his claim, the district court should consider obtaining a
response from the Government prior to preparing its findings and
conclusions of law.
COA GRANTED, VACATED AND REMANDED.