United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 9, 2003
Charles R. Fulbruge III
Clerk
No. 03-60279
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GHAFOUR BILLY ASEMANI,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC Nos. 3:02-CV-279-LN
3:99-CR-121-ALL-LN
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Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
Ghafour Billy Asemani, federal prisoner #44700-83, seeks a
certificate of appealability (COA) to appeal the denial of his 28
U.S.C. § 2255 motion in which he challenged his guilty-plea
conviction for health care fraud, mail fraud, and making false
statements. The district court dismissed Asemani’s 28 U.S.C.
§ 2255 motion finding that Asemani, as part of the memorandum of
*
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that this opinion should not be published and is not precedent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. 03-60279
-2-
understanding, waived his right to collaterally challenge his
conviction and sentence.
A COA may issue “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). Where the district court rejects
constitutional claims on procedural grounds, the prisoner must
show that “jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling.” Slack
v. McDaniel, 529 U.S. 473, 484 (2000).
Asemani contends that his appeal waiver does not preclude
consideration of his 28 U.S.C. § 2255 motion. He first argues
that his plea was rendered involuntary by the Government’s
promise during plea negotiations that the forfeiture funds would
be applied to the restitution order. In support of his argument,
he points, as he did in the district court, to a letter from
defense counsel stating that the Government agreed that
restitution would be the amount set by the court less any money
from the sale of his home. Asemani contends that had the promise
not been made, he would not have pleaded guilty and that the
failure of the Government to fulfill this promise amounted to
breach of the plea bargain.
Asemani argues next that he was assured by his counsel that
restitution would be offset by the forfeiture funds. He also
No. 03-60279
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contends that counsel was ineffective in failing to advise the
district court of the letter during the plea hearing. Asemani
argues that these acts and omissions rendered his guilty plea
involuntary.
Asemani has shown that jurists of reason would find it
debatable whether the district court was correct in finding that
the appeal-waiver provision precluded review of his 28 U.S.C.
§ 2255 motion. Asemani has also alleged several facially valid
constitutional claims. Slack, 529 U.S. at 484. Accordingly, we
GRANT COA, VACATE the judgment of the district court, and REMAND
the case to the district court for further proceedings.
COA GRANTED; JUDGMENT VACATED AND CASE REMANDED.