IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50779
USDC No. A-98-CR-281-2-JN
USDC No. A-00-CV-593-JN
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CURTIS DARRYL NORRIS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
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April 16, 2002
Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Curtis Norris seeks a certificate of appealability (COA)
to appeal the district court’s denial of his 28 U.S.C. § 2255
motion.
Norris must obtain a COA to proceed on appeal. See 28
U.S.C. § 2253(c)(1)(B). A COA may be issued only if Norris has
made a "substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). Norris can satisfy this standard
*
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that this opinion should not be published and is not precedent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.
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No. 01-50779
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if he shows "that 'reasonable jurists could debate whether (or, for
that matter agree that) the [§ 2255 motion] should have been
resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.'" Wheat v.
Johnson, 238 F.3d 357, 359-60 (5th Cir.) (citations omitted), cert.
denied, 121 S. Ct. 2226 (2001). Furthermore, "[w]here a district
court has rejected constitutional claims on the merits, . . . [t]he
[movant] must demonstrate that reasonable jurists would find the
district court's assessment of the constitutional claims debatable
or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The district court made insufficient findings on the
controlling factual question, whether Norris requested counsel to
file an appeal and whether counsel agreed to do so. See United
States v. Daly, 823 F.2d 871, 872 (5th Cir. 1987) (findings and
conclusions upon which the district court’s rulings are based are
required when denying section 2255 motions). COA is therefore
GRANTED, the judgment is vacated, and the case is remanded to the
district court for the purpose of making the necessary findings on
the controlling issue. If the district court finds that counsel
agreed, after sentencing, to file a direct appeal, it has authority
to grant 28 U.S.C. § 2255 relief if such relief is appropriate. If
the district court finds otherwise, the case should be returned to
this court for full briefing.
COA is DENIED on the issues whether Norris’s term of
supervised release exceeded the statutory maximum and whether his
sentence was excessive pursuant to Apprendi v. New Jersey, 530 U.S.
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No. 01-50779
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466 (2000). Norris’s motion to substitute counsel is also DENIED.
COA GRANTED IN PART, DENIED IN PART; SUBSTITUTION OF
COUNSEL DENIED; JUDGMENT VACATED AND REMANDED.