* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 98-50764

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TOD ANTHONY HIGGINS,

Defendant-Appellant.

- - - - - - - - - -

Appeal from the United States District Court

for the Western District of Texas

USDC No. W-98-CA-230

USDC No. W-97-CR-52-1

- - - - - - - - - -

January 18, 1999

Before DAVIS, DUHE’, and PARKER, Circuit Judges.

PER CURIAM:*

Tod Anthony Higgins, federal prisoner #78665-080, seeks a

certificate of appealability (COA) to appeal from the denial of

his motion for relief pursuant to 28 U.S.C. § 2255. Higgins

moves for leave to proceed in forma pauperis (IFP), for

production of transcripts at government expense, and for

appointment of counsel. Higgins’s motion for leave to proceed

IFP is GRANTED. His motions production of transcripts for

appointment of counsel are DENIED.
No. 98-50764

-2-

Higgins contends that the district court incorrectly based

the denial of his § 2255 motion on the waiver provision in his

plea agreement; that the warrant for the search of his residence

described the wrong residence and bore another address; that his

conviction violated the Double Jeopardy Clause because local

police confiscated his property before he was convicted; that the

confiscation of his property violated the Due Process Clause; and

that he received ineffective assistance of counsel.

“A certificate of appealability may issue . . . only if the

applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). When the

district court’s denial of the motion was based upon a nonconstitutional ground such as the waiver provision in Higgins’s

plea agreement, we employ a two-step process. Murphy v. Johnson,

110 F.3d 10, 11 (5th Cir. 1997). First, we must decide if

Higgins has made a credible showing that the district court’s

determination of the non-constitutional ground was erroneous. 

Second, we must determine if Higgins’s underlying claim that he

was denied a constitutional right is debatable among reasonable

jurists. Id.

In his plea agreement, Higgins waived the right to challenge

his sentence, with some exceptions. He did not waive the right

to challenge his conviction. Higgins’s contentions regarding

double jeopardy and the warrant in his case implicate the

validity of his conviction. Higgins did not waive the right to

assert those issues by virtue of his plea agreement. Higgins’s

ineffective-assistance contentions implicate the validity of his
No. 98-50764

-3-

conviction and his sentence. Higgins reserved the right to

assert any ineffective-assistance or other constitutional

contentions regarding his sentence. Higgins did not waive the

right to raise his ineffective-assistance issues in § 2255

proceedings. The wavier provision in Higgins’s plea agreement

did not preclude him from raising any of the issues on which he

seeks a COA. Higgins therefore has made a substantial showing

that the district court erred by denying him § 2255 relief based

solely on the waiver provision.

Had the district court addressed Higgins’s underlying

substantive contentions, we could proceed to address whether

Higgins has made a substantial showing of the denial of a

constitutional right. Whitehead v. Johnson, 157 F.3d 384, 387

(5th Cir. 1998). The district court, however, relied solely on

waiver when denying Higgins’s § 2255 motion and did not indicate

on what ground it denied a COA. The COA requirement is

jurisdictional, and the district court must deny a COA before we

may consider whether to grant one. Muniz v. Johnson, 114 F.3d

43, 45 (5th Cir. 1997).

Muniz’s recognition that the COA requirement is

jurisdictional as to each issue requires that, once we

conclude that the district court erred in dismissing an

application because of [purely procedural grounds

without consideration of the underlying merits], we

vacate and remand to the district court to address the

merits of the habeas claims in the first instance.

Whitehead, 157 F.3d at 388.

Higgins’s motion for a COA is GRANTED. His case is VACATED

and REMANDED for consideration of Higgins’s underlying claims for

§ 2255 relief.
No. 98-50764

-4-