United States v. Johnson

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 13, 2008
No. 07-10522
USDC No. 5:06-CV-181 Charles R. Fulbruge III
USDC No. 5:05-CR-102-ALL Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT JAMES JOHNSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
Before SMITH, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Robert Johnson, federal prisoner # 34555-177, moves for a certificate of
appealability (“COA”) to appeal the denial of his 28 U.S.C. § 2255 motion chal-
lenging his guilty-plea conviction and sentence. Johnson contends that his coun-
sel was ineffective for failing to argue that Johnson’s state drug convictions did
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-10522
not qualify as “controlled substance offenses” on which a U.S.S.G. § 4B1.1 en-
hancement could be based and for failing to file a requested notice of appeal.
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. McDaniel, 529 U.S. 473, 484 (2000). Johnson did not raise
in the district court the developed argument that he now presents with respect
to his claim that his counsel was ineffective for not challenging whether the con-
victions were “controlled substance offenses.”
Issues that are not before the district court for a COA ruling will not be
considered for the first time in a COA motion in this court. See Whitehead v.
Johnson, 157 F.3d 384, 387-88 (5th Cir. 1998). To the extent that Johnson did
challenge the characterization of his convictions as controlled substance offenses,
he has failed to show that reasonable jurists could conclude that his counsel was
ineffective for not challenging the use of those convictions to enhance his sen-
tence under § 4B1.1. Accordingly, the motion for a COA is DENIED as to that
issue.
In conjunction with his claim that his counsel provided ineffective assis-
tance by failing to file a notice of appeal, Johnson alleged under penalty of per-
jury that he informed counsel that he wished to appeal. See 28 U.S.C. § 2253-
(c)(2); Roe v. Flores-Ortega, 528 U.S. 470, 477, 483 (2000). Therefore, Johnson
was not required to demonstrate that he would have presented meritorious is-
sues on appeal. Id. at 485-86. Because the record does not conclusively show
that Johnson did not ask counsel to file a notice of appeal, an evidentiary hear-
ing is needed. See United States v. Tapp, 491 F.3d 263, 266 (5th Cir. 2007).
Accordingly, the motion for a COA is GRANTED solely on the issue of
ineffective assistance of counsel. The judgment is VACATED and the case
REMANDED for further development. We express no view on how the issue
should be handled or ultimately resolved on remand.
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