United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 4, 2005
Charles R. Fulbruge III
Clerk
No. 04-50968
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID LEE JOHNSON,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:04-CV-215
USDC NO. 6:03-CR-16-1
--------------------
Before GARZA, DEMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
David Lee Johnson, federal prisoner # 26676-180, seeks a
certificate of appealability (“COA”) to appeal the district
court’s denial of his 28 U.S.C. § 2255 motion challenging his
guilty-plea conviction to manufacture of methamphetamine.
Johnson also moves for leave to proceed in forma pauperis
(“IFP”). In order to obtain a COA, Johnson must demonstrate that
“reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong.” Slack 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this opinion should not be published and is not precedent except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. 04-50968
-2-
McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v. Cockrell,
537 U.S. 322, 338 (2003).
Johnson argues that the district court erroneously concluded
that his ineffective-assistance-of-counsel claim was procedurally
defaulted. Johnson is correct. A claim of ineffective
assistance of counsel may be raised for the first time in a 28
U.S.C. § 2255 motion. See Massaro v. United States, 538 U.S.
500, 509 (2003).
Johnson also argues that his trial counsel rendered
ineffective assistance by failing to file a notice of appeal on
his behalf, despite Johnson’s request that he do so. COA is
GRANTED on the question whether and when Johnson requested an
appeal and the advice or information provided by counsel. See
Roe v. Flores-Ortega, 528 U.S. 470, 477-78, 485-86 (2000). This
case is REMANDED for consideration of this issue in the first
instance by the district court and for an evidentiary hearing, if
necessary. To assist the district court in its consideration of
this issue and Johnson’s related issues concerning the appeal
waiver and the Government’s alleged breach of the plea agreement,
and to assist with any subsequent appellate review, Johnson is
advised that, if he meets the requirements, he should move in the
district court for production at Government expense of the
transcripts of the rearraignment and sentencing proceedings. See
28 U.S.C. § 753(f); Harvey v. Andrist, 754 F.2d 569, 571 (5th
Cir. 1985).
No. 04-50968
-3-
Johnson further argues that his sentence violated the Sixth
Amendment and Blakely v. Washington, 124 S. Ct. 2531 (2004). In
light of our order to grant COA and remand for further
consideration, we DEFER ruling on this issue. Johnson is advised
that if the district court denies relief on the aforementioned
claim, he should address this claim in a future COA request.
Johnson’s motion for IFP is GRANTED.
COA GRANTED; IFP GRANTED; VACATED AND REMANDED.