* The case is unanimously ordered submitted without o ral argument pursuant

to Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 14 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. THADDEUS BLACK,

Defendant-Appellant. No. 00-6225 (D.C. No. CIV-00-204-A) (W.D. Okla.)

ORDER AND JUDGMENT *

Before EBEL , PORFILIO , and LUCERO , Circuit Judges.

Pursuant to 28 U.S.C. § 2253(c), we previously granted defendant a certificate of appealability (COA) on the issue o f whether the district court erred in failing to conduct an evidentiary hearing on defendant’s claim of ineffective assistance of counsel. On April 20, 20 01, the government filed a brief stating that a remand to the district court for an evidentiary hearing is necessary.-2-

We agree with the government’s position. According ly, this matter is remanded to the district court for an evidentiary h earing on defendant’s claim that his trial counsel was ineffective in withdrawing th e objections to the two and six ounces of crack cocaine and in agreeing to stipulat e to a base offense level of 34 for Count 3. If defendant qualifies for the appoin tment of counsel under 18 U.S.C. § 3006A(g), the district court shall also appoint counsel for defendant pursuant to 28 U.S.C. § 2255 Rule 8(c). Defendant has also applied for a COA on his claim t hat his counsel was ineffective in withdrawing the objection to the two -level upward adjustment for obstruction of justice. We deny defendant’s applic ation on this issue because it is undisputed that defendant submitted false documentation to the probation officer that could potentially have influenced the sentenci ng process. Under USSG § 3C1.1, this is sufficient grounds for a two-level upward adjustment for obstruction of justice, and defendant is therefore unable to establish that his counsel was ineffective in withdrawing the objectio n. Finally, on October 20, 2000, defendant filed a mot ion in the district court to withdraw his guilty plea based on an alleged due process violation. On October 20 and 23, 2000, defendant also filed relat ed motions in this court entitled “Motion Requesting the Court of Appeals to Determine if the District Court Lacked Subject-Matter Jurisdiction and Reviewof His F. R. Crim. P. Rule1 On December 15, 2000, the district court transferre d defendant’s district

court motion to this court for consideration as a s econd or successive motion under § 2255. On December 29, 2000, this court doc keted defendant’s motion as a separate appeal, case No. 00-6450, and issued a w ritten notice to defendant directing him to file a motion for permission to fi le a second or successive § 2255 motion within thirty days. Defendant failed to fil e a motion for permission within the thirty-day period, and case No. 00-6450 was dis missed on February 7, 2001. -3- 32(e) Issue” and “Motion to Show Cause for Failure to Raise Involuntariness of His Plea of Guilty Below.” We deny defendant’s motions as moot. 1 For the foregoing reasons, the order and judgment e ntered by the district court on May 15, 2000, denying defendant’s motion u nder 28 U.S.C. § 2255 are VACATED in part, and this matter is REMANDED to the district court for further proceedings consistent with this order and judgment.

Entered for the Court

Carlos F. Lucero Circuit Judge