IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-50541
USDC No. W-98-CV-279
USDC No. W-97-CR-44-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES DOYLE CARDWELL,
Defendant-Appellant.
---------------------
Appeal from the United States District Court
for the Western District of Texas
---------------------
December 9, 1999
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
James Doyle Cardwell, federal prisoner # 78689-080, 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. Cardwell’s motion to proceed in forma pauperis (IFP) on
appeal is GRANTED.
Cardwell first challenges the application and adequacy of
the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). A § 2255 motion does not amount to a habeas proceeding
and, thus, does not implicate the Suspension Clause. Turner v.
*
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that this opinion should not be published and is not precedent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. 99-50541
- 2 -
Johnson, 177 F.3d 390, 392 & n.1 (5th Cir. 1999), cert. denied,
___ S. Ct. ___ (U.S. Nov. 15, 1999) (No. 99-6127). Because
Cardwell filed his § 2255 motion after the April 24, 1996,
effective date of the AEDPA, he must obtain a COA before
proceeding with this appeal. United States v. Garza, 165 F.3d
312, 313-14 (5th Cir. 1999), cert. denied, ___ S. Ct. ___ (U.S.
Nov. 15, 1999)(No. 99-5377).
Cardwell also argues that his counsel was ineffective for
giving him inaccurate advice on the applicable sentencing
guideline range, for agreeing with the Government to waive
Cardwell’s right to appeal, for failure to challenge the role
adjustment, and for failing to file an appeal. A COA requires a
substantial showing of the denial of a constitutional right. 28
U.S.C. § 2253(c)(2). Cardwell has met that standard with respect
only to his claim that he requested that his counsel file a
notice of appeal and counsel allegedly refused. There is a
factual dispute as to whether Cardwell asked his attorney to file
an appeal. Accordingly, his request for COA is GRANTED with
respect to that claim. Because the record presented does not
conclusively establish that Cardwell cannot demonstrate that he
is entitled to relief, the district court erred in failing to
conduct an evidentiary hearing. United States v. Drummond, 910
F.2d 284, 285 (5th Cir. 1990). The judgment of the district
court is VACATED, and the case is REMANDED to the district court
for further proceedings consistent with this opinion. Cardwell’s
request for a COA on the remaining issues is DENIED.
No. 99-50541
- 3 -
IFP GRANTED; COA GRANTED AS TO FAILURE TO FILE AN APPEAL
CLAIM ONLY; COA DENIED AS TO REMAINING ISSUES; VACATED AND
REMANDED.