No. 09-11087 Summary Calendar.
June 18, 2010.
Susan Cowger, Assistant U.S. Attorney, U.S. Attorney's Office, Dallas, TX, for Plaintiff-Appellee.
Billy Ralph Epps, Oakdale, LA, pro se.
Appeal from the United States District Court for the Northern District of Texas, USDC Nos. 3:09-CV-264, 3:07-CR-213-1.
Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
Billy Ralph Epps, federal prisoner # 36428-177, moves this court for a certificate of appealability (COA) to appeal the district court's denial of his 28 U.S.C. § 2255 motion, which challenged his guilty plea conviction for possession and distribution of red phosphorus, a List I chemical, knowing and having reasonable cause to believe that it would be used to manufacture a mixture or substance containing a detectable amount of methamphetamine, a Schedule II controlled substance. Epps was sentenced to 168 months of imprisonment and two years of supervised release.
In his motion for a COA, Epps argues that counsel was ineffective for failing to (1) move to dismiss the indictment because it did not specify the chemical quantity and advise him that the indictment was deficient on this basis; (2) correctly advise him of his sentencing exposure under the Guidelines; (3) object to the district court's calculation of the chemical quantity; (4) object to the enhancement of his sentence on the basis of a chemical quantity that was not charged in the indictment or proven beyond a reasonable doubt, in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); (5) object to the district court's treatment of the Guidelines as mandatory; (6) object to the district court's failure to advise him of his appeal rights at sentencing, in violation of Federal Rule of Criminal Procedure 32; and (7) correctly advise him of his appeal rights. Epps also argues that counsel was ineffective for failing to challenge in a direct appeal (1) the chemical quantity; (2) the Apprendi error; and (3) the district court's treatment of the Guidelines. Epps argues further that he was deprived of his right to appeal by the district court, which failed to apprise him of his right to appeal at sentencing.
Epps has made a substantial showing of the denial of a constitutional right regarding his claim that counsel was ineffective for erroneously advising him that he had no right to appeal. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel 529 U.S. 473, 483-84, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). The record does not conclusively indicate whether counsel erroneously advised Epps of his appeal rights and whether Epps would have filed a timely appeal but for counsel's advice, making an evidentiary hearing on that issue necessary. See United States v. Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992). A COA is granted solely on this claim. The district court's judgment is vacated, and the case is remanded for further proceedings in relation to that claim. We offer no opinion on the merits of this ineffective assistance of counsel claim.
With respect to his remaining claims, Epps has not shown that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack, 529 U.S. at 484, 120 S.Ct. 1595. Consequently, his motion for a COA is denied as to those claims. Id.
COA GRANTED IN PART; COA DENIED IN PART; VACATED AND REMANDED.