IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-20236
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT ARTHUR HALL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC Nos. H-98-CV-1565, H-95-CR-201-ALL
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December 6, 1999
Before HIGGINBOTHAM, DeMOSS, STEWART, Circuit Judges.
PER CURIAM:*
Robert Arthur Hall, federal prisoner # 38261-079, requests a
certificate of appealability (COA) to appeal the magistrate
judge’s dismissal of his 28 U.S.C. § 2255 motion. Hall raised
the following issues in his request for a COA: (1) counsel
rendered ineffective assistance of counsel; (2) the conviction
was based on evidence obtained through an illegal search and
seizure; and (3) the district court erred when it denied
counsel’s motion to withdraw.
On the first two issues, Hall has failed to make a
substantial showing of the denial of a constitutional right. See
*
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that this opinion should not be published and is not precedent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. 99-20236
-2-
28 U.S.C. § 2253(c)(2). However, Hall has made a credible
showing that the magistrate judge erred when it dismissed the
third issue. See Whitehead v. Johnson, 157 F.3d 384, 386 (5th
Cir. 1998). When it dismissed the motion-to-withdraw claim, the
magistrate judge incorrectly concluded that Hall had raised the
issue on direct appeal and is barred from relitigating it in a
collateral § 2255 proceeding. The record reveals that Hall did
not raise this issue on appeal. See United States v. Hall, No.
96-20717, (5th Cir. May 22, 1997)(unpublished). Once it is
determined that the magistrate judge erred when it dismissed a
claim on procedural grounds, this court must vacate and remand
for consideration of the merits of the claim in the first
instance, because this court lacks jurisdiction to consider the
merits of Hall’s underlying substantive claim. See Whitehead,
157 F.3d at 388. Accordingly, we GRANT a COA and VACATE AND
REMAND for consideration of the issue whether the magistrate
judge erred when it denied counsel’s motion to withdraw.