United States v. Norris , 86 F. App'x 686 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 21, 2004
Charles R. Fulbruge III
Clerk
No. 03-50657
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CURTIS DARRYL NORRIS,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC Nos. A-00-CV-593-JN
A-98-CR-281-2-JN
--------------------
Before JOLLY, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM:*
Following a jury trial, Curtis Darryl Norris was convicted
of four charges related to the manufacture of methamphetamine.
The district court sentenced him to 240 months in prison and ten
years of supervised release. Norris filed an unsuccessful 28
U.S.C. § 2255 motion to challenge this conviction and sentence.
Norris then moved this court for a certificate of appealability
(COA) to challenge the district court’s denial of his 28 U.S.C.
*
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that this opinion should not be published and is not precedent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. 03-50657
-2-
§ 2255 motion. He argued, inter alia, that counsel rendered
ineffective assistance for failure to file a direct appeal. This
court granted his COA motion in part and vacated the underlying
judgment of the district court that denied Norris’ 28 U.S.C.
§ 2255 motion as to this claim. This court determined that the
district court “made insufficient findings on the controlling
factual question, whether Norris requested counsel to file an
appeal and whether counsel agreed to do so.” United States v.
Norris, No. 01-50779 at 2 (5th Cir. Apr. 16, 2002). This court
thus remanded the case to the district court so that court could
make further factual findings on this “controlling factual
question.” Id.
The district court misunderstood this court’s previous
order. Rather than making the appropriate factual findings, the
district court incorporated the same magistrate judge’s report
that it had previously accepted and denied Norris a COA. The
magistrate judge’s report on which the district court relied did
not address the discrete issue delineated by the prior panel,
“whether Norris requested counsel to file an appeal and whether
counsel agreed to do so.” Id.
Norris again appears before this court. He notes that it is
unclear whether a COA is now needed, so he moves this court for a
COA to the extent necessary. He argues that this court should
grant him relief on his ineffective assistance claim. He
alternatively argues that the district court made insufficient
No. 03-50657
-3-
findings on remand and that this court should remand to the
district court for a second time so that the district court can
make the requisite findings. This case is before this court in
an atypical procedural posture, and it is unclear whether COA is
necessary in this case. We need not, however, resolve this issue
to dispose of this appeal.
Because the district court did not make the specific
findings requested by this court, it is necessary to once again
remand this case to that court for further findings “on the
controlling factual question, whether Norris requested counsel to
file an appeal and whether counsel agreed to do so.” Id.
Accordingly, we order that this case be remanded to the district
court for further findings on this specific issue. As we noted
before, if the district court finds that counsel agreed, after
sentencing, to file a direct appeal, it has authority to grant 28
U.S.C. § 2255 relief if such relief is appropriate. Norris’
motion for a COA on this issue is granted to the extent
necessary. We decline to rule on the issue whether counsel
rendered ineffective assistance.
COA GRANTED, TO EXTENT NECESSARY, ON ISSUE WHETHER DISTRICT
COURT MADE SUFFICIENT FINDINGS; CASE REMANDED FOR FURTHER FACTUAL
FINDINGS.