United States v. Bell

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-50992 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HOWARD JAMES BELL,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. W-97-CA-321 (W-95-CR-109-5) - - - - - - - - - - August 10, 1998

Before JONES, BARKSDALE, and DENNIS, Circuit Judges.

PER CURIAM:*

Howard James Bell moves this court for a certificate of

appealability (COA) to appeal the district court’s summary denial

of his 28 U.S.C. § 2255 motion.

We GRANT a COA on Bell’s ineffective-assistance-of-counsel,

breached-plea-agreement, and invalid-plea-agreement claims. See

28 U.S.C. § 2253(c)(2). Bell has shown that the district court

erred in summarily dismissing these claims as precluded by the

plea-agreement waiver of Bell’s right to challenge his sentence

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 97-50992 - 2 -

in a § 2255 proceeding. The waiver either excludes or does not

reach these claims. Briefing by the Government is not necessary

at this time. See Dickinson v. Wainwright, 626 F.2d 1184, 1186

(5th Cir. 1980). We VACATE AND REMAND these claims to the

district court for further proceedings. See Clark v. Williams,

693 F.2d 381, 382 (5th Cir. 1982).

IT IS FURTHER ORDERED that COA is DENIED on Bell’s claim

that the district court erred in determining the amount of drugs

attributable to Bell. To the extent that this claim is

independent of Bell’s claim that counsel was ineffective for

failing to object to this alleged error by the district court, it

is a challenge to Bell’s sentence and is not excluded from the

waiver in the plea agreement.

Bell’s motion for recusal of the district court on remand is

DENIED.

COA GRANTED in part; VACATED AND REMANDED in part; COA

DENIED in part; Motion for recusal on remand DENIED.