United States v. Johnson ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-31477
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WALTER LEE JOHNSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 01-CV-2262
USDC No. 99-CR-50082-7
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April 17, 2002
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Walter Lee Johnson, a federal prisoner (# 10373-035), moves
this court for a certificate of appealability (“COA”) to appeal
the district court’s summary dismissal of his 28 U.S.C. § 2255motion. He argues that the district court erred in dismissing
his claim, that his trial counsel had a conflict of interest
rendering counsel’s representation ineffective, without providing
findings and conclusions for the dismissal or conducting an
*
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that this opinion should not be published and is not precedent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. 01-31477
-2-
evidentiary hearing. He also contends that the district court
erred in summarily dismissing his claim that his appellate
counsel was ineffective in failing to raise on appeal the claim
of ineffective assistance of trial counsel. Johnson does not
address on COA the issue of the district court’s dismissal of his
remaining 28 U.S.C. § 2255 claims. Therefore, these issues are
waived. See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir.
1999).
To obtain a COA, Johnson must demonstrate that jurists of
reason would find it debatable whether the district court was
correct in summarily dismissing his 28 U.S.C. § 2255 motion.
Slack v. McDaniel, 529 U.S. 473, 484 (2000). A COA is GRANTED on
the issue whether the district court’s summary dismissal was
correct of Johnson’s claim that his trial counsel had a conflict
of interest. See Hart v. United States, 565 F.2d 360, 362 (5th
Cir. 1978) (findings and conclusions in 28 U.S.C. § 2255 denial
are “plainly indispensable” to appellate review); Myers v. Gulf
Oil Co., 731 F.2d 281, 284 (5th Cir. 1984) (when there is no
apparent reason for the district court’s decision, this court has
not “hesitated to remand the case for an illumination of the
district court’s analysis through some formal or informal
statement of reasons”). COA is DENIED as to all remaining
issues.
The denial of habeas relief is VACATED as to the issue
whether trial counsel had a conflict of interest which rendered
No. 01-31477
-3-
his performance ineffective, the case is REMANDED, and the
district court is instructed to state reasons for the denial of
habeas relief as to this issue and to conduct an evidentiary
hearing regarding this issue if the district court deems a
hearing appropriate. See Dickinson v. Wainwright, 626 F.2d 1184,
1185 (5th Cir. Unit B Sept. 1980) (granting CPC and vacating and
remanding without further briefing); Burton v. Oliver, 599 F.2d
49, 50 & n.3 (5th Cir. 1979) (same).
COA GRANTED ON ISSUE WHETHER JOHNSON’S TRIAL COUNSEL WAS
INEFFECTIVE BECAUSE COUNSEL HAD A CONFLICT OF INTEREST; COA
DENIED ON REMAINING ISSUES; VACATED AND REMANDED FOR FURTHER
PROCEEDINGS.