United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 12, 2003
Charles R. Fulbruge III
Clerk
No. 02-41568
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
DARYL DEWAYNE CARTER
Defendant - Appellant
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:01-CV-455
USDC No. 6:00-CR-5-1
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Before KING, Chief Judge, and JOLLY and PRADO, Circuit Judges.
PER CURIAM:*
Daryl Dewayne Carter, Texas inmate # 596739, was granted a
certificate of appealability (COA) from the denial of his motion
to vacate his federal conviction and sentence for conspiracy to
possess with intent to distribute cocaine, which he filed
pursuant to 28 U.S.C. § 2255. A COA was granted on the issue
whether the district court erred in holding that this court
addressed and rejected his claims of ineffective assistance 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that this opinion should not be published and is not precedent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. 02-41568
-2-
counsel in granting counsel’s Anders** motion, thereby
procedurally barring him from raising the claims pursuant to 28
U.S.C. § 2255.
Our opinion granting counsel’s motion to withdraw and
dismissing the direct criminal appeal included the sentence,
"Carter has filed a response asserting that the district court
abused its discretion in denying his motion to withdraw his
guilty plea and that counsel was ineffective." Not unreasonably,
the district court construed the opinion to mean that this court
had considered the merits of Carter’s ineffective assistance of
counsel claims.
This court’s reference to Carter’s ineffective assistance of
counsel claims, however, meant only that Carter had made the
claims, not that we considered them on the merits, which would
have been a departure from our normal practice. See United
States v. Gibson, 55 F.3d 173 (5th Cir. 1995). Therefore, the
district court erred in holding that this court did address the
merits of Carter’s claims of ineffective assistance of counsel.
Accordingly, with regard to the disposition of the
ineffectiveness claims, the district court’s judgment dismissing
Carter’s 28 U.S.C. § 2255 motion is vacated. The case is
remanded to the district court for further consideration of
Carter’s claims of ineffective assistance of counsel.
VACATED AND REMANDED
**
Anders v. California, 386 U.S. 738 (1967).