IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-30725
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO LOPEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 97-CV-549
USDC No. 93-CR-20046-02
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September 27, 1999
Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Francisco Lopez, federal prisoner # 56053-079, appeals the
district court’s denial of his motion to vacate sentence pursuant
to 28 U.S.C. § 2255. Lopez contends that the district court
erred in refusing to grant relief from a sentence imposed in
excess of the statutory maximum and in failing to consider his
assertions of double jeopardy and ineffective assistance of
counsel. The district court denied relief on Lopez’s excessive-
*
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that this opinion should not be published and is not precedent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. 97-30725
-2-
sentence claim because the issue could have been raised on direct
appeal and Lopez had not shown cause and prejudice for his
failure to do so. United States v. Shaid, 937 F.2d 228, 232 (5th
Cir. 1991)(en banc). In his supplemental pleading following the
Government’s raising of procedural bar, Lopez did not attempt to
show cause and prejudice for his default in not raising the issue
of excessive sentence on direct appeal. As a result, this
portion of the district court’s opinion is AFFIRMED.
However, Lopez is correct in asserting that the district
court failed to consider his claims that he was subjected to
double jeopardy and that his trial counsel was ineffective for
failing to raise the double-jeopardy issue earlier. This court
lacks jurisdiction to consider claims not considered by the
district court in determining whether to grant a certificate of
appealability. Whitehead v. Johnson, 157 F.3d 384, 387-88 (5th
Cir. 1998). The district court’s denial of relief under § 2255
is therefore VACATED IN PART and the case REMANDED so that the
district court can consider the merits of these issues and
whether Lopez can show cause for and prejudice from his failure
to raise the issue of double jeopardy on direct appeal.
AFFIRM IN PART; VACATE AND REMAND FOR CONSIDERATION OF
ISSUES ON THE MERITS.