United States v. Johnson

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-31477 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WALTER LEE JOHNSON,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Louisiana USDC No. 01-CV-2262 USDC No. 99-CR-50082-7 -------------------- April 17, 2002

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Walter Lee Johnson, a federal prisoner (# 10373-035), moves

this court for a certificate of appealability (“COA”) to appeal

the district court’s summary dismissal of his 28 U.S.C. § 2255

motion. He argues that the district court erred in dismissing

his claim, that his trial counsel had a conflict of interest

rendering counsel’s representation ineffective, without providing

findings and conclusions for the dismissal or conducting an

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-31477 -2-

evidentiary hearing. He also contends that the district court

erred in summarily dismissing his claim that his appellate

counsel was ineffective in failing to raise on appeal the claim

of ineffective assistance of trial counsel. Johnson does not

address on COA the issue of the district court’s dismissal of his

remaining 28 U.S.C. § 2255 claims. Therefore, these issues are

waived. See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir.

1999).

To obtain a COA, Johnson must demonstrate that jurists of

reason would find it debatable whether the district court was

correct in summarily dismissing his 28 U.S.C. § 2255 motion.

Slack v. McDaniel, 529 U.S. 473, 484 (2000). A COA is GRANTED on

the issue whether the district court’s summary dismissal was

correct of Johnson’s claim that his trial counsel had a conflict

of interest. See Hart v. United States, 565 F.2d 360, 362 (5th

Cir. 1978) (findings and conclusions in 28 U.S.C. § 2255 denial

are “plainly indispensable” to appellate review); Myers v. Gulf

Oil Co., 731 F.2d 281, 284 (5th Cir. 1984) (when there is no

apparent reason for the district court’s decision, this court has

not “hesitated to remand the case for an illumination of the

district court’s analysis through some formal or informal

statement of reasons”). COA is DENIED as to all remaining

issues.

The denial of habeas relief is VACATED as to the issue

whether trial counsel had a conflict of interest which rendered No. 01-31477 -3-

his performance ineffective, the case is REMANDED, and the

district court is instructed to state reasons for the denial of

habeas relief as to this issue and to conduct an evidentiary

hearing regarding this issue if the district court deems a

hearing appropriate. See Dickinson v. Wainwright, 626 F.2d 1184,

1185 (5th Cir. Unit B Sept. 1980) (granting CPC and vacating and

remanding without further briefing); Burton v. Oliver, 599 F.2d

49, 50 & n.3 (5th Cir. 1979) (same).

COA GRANTED ON ISSUE WHETHER JOHNSON’S TRIAL COUNSEL WAS INEFFECTIVE BECAUSE COUNSEL HAD A CONFLICT OF INTEREST; COA DENIED ON REMAINING ISSUES; VACATED AND REMANDED FOR FURTHER PROCEEDINGS.