United States v. Austin ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40778
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EVERETT NEIL AUSTIN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-98-CV-560
USDC No. C-96-CR-286
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January 25, 2000
Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Everett Neil Austin seeks a certificate of appealability (“COA”)
to appeal the district court’s denial of his 28 U.S.C.
§ 2255 motion. He argues that counsel was ineffective in failing
to conduct adequate pretrial investigation; in failing to follow
through with his pretrial motions; in failing to object to the
Government’s questions concerning his prior arrest for criminal
mischief; and in refusing to allow him to testify. He also
asserts that the decision to testify was his alone to make, that
he did not knowingly waive his right to testify, and that he was
*
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that this opinion should not be published and is not precedent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.
-2-
denied his constitutional right to testify.
To obtain a COA, Austin must make a substantial showing of
the denial of a constitutional right. See § 2253(c)(2). He has
not made such a showing with regard to any of his claims of
ineffective assistance of counsel. He has, however, made the
requisite showing with regard to his claim that his
constitutional rights were violated when his counsel refused to
permit him to testify.
Nevertheless, Austin’s allegation is too conclusional to
justify the further investment of judicial resources at this
juncture. Accordingly, we GRANT him a COA on this issue, VACATE
the district court’s judgment, and REMAND with instructions that
Austin is to file a supplement to his § 2255 motion setting forth
in greater detail the circumstances surrounding his failure to
testify. See United States v. Martinez, 181 F.3d 627, 628-29
(5th Cir. 1999). If, once this is done, the record does not
conclusively show that Austin is entitled to no relief, the
district court is directed to conduct an evidentiary hearing to
determine whether Austin was denied his right to testify. See
United States v. Hughes, 635 F.2d 449, 451 (5th Cir. 1981);
§ 2255. Austin’s request for COA on his other issues is DENIED.
COA GRANTED in part, DENIED in part; VACATED AND REMANDED.