United States v. Isaac

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 9, 2000
• Docket: 99-40901
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 99-40901 Summary Calendar _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHARLES TIMOTHY ISAAC,

Defendant-Appellant. _________________________________________________________________

Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:96-CV-187 _________________________________________________________________ May 4, 2000

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Charles Timothy Isaac (“Isaac”), federal prisoner #04252-078,

has filed a pro se appeal of the district court’s denial of, and

denial of leave to amend, his 28 U.S.C. § 2255 motion. Isaac’s

motion challenged his 1993 guilty plea conviction for using and

carrying a firearm during and in relation to a drug trafficking

crime, in violation of 18 U.S.C. § 924(c)(1), and possessing a

firearm after being convicted of a felony, in violation of 18

U.S.C. § 922(g)(1).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. The record does not conclusively show that Isaac is entitled

to no relief with respect to: (1) his claim that his guilty plea

was involuntary due to his counsel’s promise of an off-the-record

deal; (2) his claim that his counsel provided ineffective

assistance by erroneously advising him regarding the scope of

liability under § 924(c)(1); and (3) his claim that his counsel

provided ineffective assistance by failing to comply with his

request for a direct appeal. Because these claims are thus not

futile, see § 2255, the district court abused its discretion in

denying Isaac’s motion for leave to amend his § 2255 motion in

order to assert them. See Leffall v. Dallas Indep. Sch. Dist., 28

F.3d 521, 524 (5th Cir. 1994); see also Duff-Smith v. Collins, 973

F.2d 1175, 1180 (5th Cir. 1992) (28 U.S.C. § 2254 case).

Accordingly, the district court’s judgment is VACATED and this

case is REMANDED to the district court with the instruction to

grant Isaac leave to amend his § 2255 motion in order to assert the

above claims. We neither express nor intimate any view as to the

claims’ ultimate merits. Finally, we decline to address the issues

raised in Isaac’s unamended § 2255 motion at this time in the light

2 of the possibility that the proceedings below may culminate in an

out-of-time appeal. See Mack v. Smith, 659 F.2d 23, 25-26 (1981).

VACATED and REMANDED.