United States v. Bell ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50992
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HOWARD JAMES BELL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-97-CA-321 (W-95-CR-109-5)
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August 10, 1998
Before JONES, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
Howard James Bell moves this court for a certificate of
appealability (COA) to appeal the district court’s summary denial
of his 28 U.S.C. § 2255 motion.
We GRANT a COA on Bell’s ineffective-assistance-of-counsel,
breached-plea-agreement, and invalid-plea-agreement claims. See
28 U.S.C. § 2253(c)(2). Bell has shown that the district court
erred in summarily dismissing these claims as precluded by the
plea-agreement waiver of Bell’s right to challenge his sentence
*
Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
No. 97-50992
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in a § 2255 proceeding. The waiver either excludes or does not
reach these claims. Briefing by the Government is not necessary
at this time. See Dickinson v. Wainwright, 626 F.2d 1184, 1186
(5th Cir. 1980). We VACATE AND REMAND these claims to the
district court for further proceedings. See Clark v. Williams,
693 F.2d 381, 382 (5th Cir. 1982).
IT IS FURTHER ORDERED that COA is DENIED on Bell’s claim
that the district court erred in determining the amount of drugs
attributable to Bell. To the extent that this claim is
independent of Bell’s claim that counsel was ineffective for
failing to object to this alleged error by the district court, it
is a challenge to Bell’s sentence and is not excluded from the
waiver in the plea agreement.
Bell’s motion for recusal of the district court on remand is
DENIED.
COA GRANTED in part; VACATED AND REMANDED in part; COA
DENIED in part; Motion for recusal on remand DENIED.