IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-10889
USDC No. 3-97-CV-2987-T
OTIS PRICE,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
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October 6, 1999
Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Otis Price (#770358), a state prisoner, has applied for a
certificate of appealability for an appeal from the dismissal of
his application for a writ of habeas corpus. Before Price may
proceed with his appeal, he must obtain a COA from a judge of
this court. 28 U.S.C. § 2253(c)(1)(A). COA will be granted only
if Price makes a substantial showing of the denial of a
constitutional right. 28 U.S.C. § 2253(c)(2). If, however, the
issue is not of constitutional dimension, the standard for
*
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this opinion should not be published and is not precedent except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. 98-10889
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granting a COA is whether there is a credible showing of error.
Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir. 1998).
Price has moved for leave to file an amended COA application
to correct typographical and case citation errors. The motion is
DENIED AS UNNECESSARY.
Price contends that he received ineffective assistance of
trial counsel and that his guilty pleas were involuntarily
entered because his attorney also represented two codefendants
who were going to testify on behalf of the prosecution. The
state court and the district court failed to address the
conflict-of-interest question. The record does not disclose
whether counsel also represented Price’s codefendants and whether
their willingness to testify for the state affected Price’s
decision to plead guilty. Although those facts were not
developed in the state-court proceedings, see 28 U.S.C.
§ 2254(e)(2), the failure to do so did not result from Price’s
decision or omission. See McDonald v. Johnson, 139 F.3d 1056,
1059 (5th Cir. 1998). Price had raised the issue in his state
postconviction motion. COA is GRANTED as to questions whether
Price received ineffective assistance of counsel because of a
professional conflict of interest, see Cuyler v. Sullivan, 446
U.S. 335 (1980), and whether the alleged conflict affected the
voluntariness of his guilty pleas. Because the district court
did not address the issue, which was raised in Price’s habeas
petition, Price has made a credible showing of error in the
court’s omission. The district court’s judgment is VACATED IN
PART and the cause is REMANDED for further proceedings. We
No. 98-10889
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intimate no opinion on the merits of these claims. See
Whitehead, 157 F.3d at 388.
Price contends that his rights to procedural due process and
to effective assistance of counsel were violated during the
probation-revocation proceedings. Price has failed to make a
substantial showing of the denial of a constitutional right as to
these issues. § 2253(c)(2). COA is DENIED as to these issues.
COA GRANTED IN PART AND DENIED IN PART; MOTION FOR LEAVE TO
FILE AMENDED COA APPLICATION DENIED; JUDGMENT VACATED IN PART AND
CAUSE REMANDED FOR FURTHER PROCEEDINGS.