IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20194
Summary Calendar
HOWARD RALPH RICH,
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 Southern District of Texas
USDC No. H-99-CV-1500
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September 15, 2000
Before SMITH, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Howard Ralph Rich, Texas prisoner #847823, appeals the
summary-judgment dismissal of his 28 U.S.C. § 2254 petition. A
COA may issue only if the applicant has made a “substantial
showing of the denial of a constitutional right.” § 2253(c)(2).
Any doubt about issuing a COA should be resolved in favor of
granting it. Fuller v. Johnson, 114 F.3d 491, 495 (5th Cir.
*
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that this opinion should not be published and is not precedent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.
O R D E R
No. 00-20194
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1997).
Rich avers that the State withheld evidence in violation of
Brady and that counsel was ineffective because he was operating
under a conflict of interest. These claims are raised for the
first time in Rich’s brief in support of his request for a COA.
This court lacks jurisdiction to review a claim raised for the
first time in a COA application. Whitehead v. Johnson, 157 F.3d
384, 387-88 (5th Cir. 1998).
Rich also avers that counsel was ineffective for failing to
investigate and call witnesses. Rich has failed to make a
substantial showing of the denial of a constitutional right with
regard to this claim. See § 2253(c)(2)
Lastly, Rich contends that counsel was ineffective for
advising him that a confession existed. Rich avers that because
no confession existed, counsel’s statement that the State was in
possession of a confession was erroneous and rendered his
subsequent guilty plea involuntary. Rich contends that had he
known that there was no confession, he would have insisted upon
going to trial.
Rich has made a substantial showing of the denial of a
constitutional right with regard to this last claim. In light of
the record as it stands, a genuine issue of material fact
precluding the grant of summary judgment existed, namely, whether
counsel told Rich that a confession existed. Rich has submitted
a letter from counsel which lends support to his argument and
should be considered by the district court in the first instance.
The district court may wish to consider whether affidavits and/or
O R D E R
No. 00-20194
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an evidentiary hearing is indicated.
Accordingly, we GRANT COA, vacate the district court’s
decision in part, and remand the case for development of the
record and further findings of fact on the issue whether counsel
was ineffective for advising Rich that a confession existed. COA
is DENIED with regard to Rich’s other claims.
COA GRANTED IN PART AND DENIED IN PART; JUDGMENT VACATED IN
PART AND CASE REMANDED.