IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-11087

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

BILLY RALPH EPPS,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:09-CV-264

USDC No. 3:07-CR-213-1

Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.

PER CURIAM:

*

Billy Ralph Epps, federal prisoner # 36428-177, moves this court for a

certificate of appealability (COA) to appeal the district court’s denial of his 28

U.S.C. § 2255 motion, which challenged his guilty plea conviction for possession

and distribution of red phosphorus, a List I chemical, knowing and having

reasonable cause to believe that it would be used to manufacture a mixture or

substance containing a detectable amount of methamphetamine, a Schedule II

United States Court of Appeals

Fifth Circuit

F I L E D

June 18, 2010

Lyle W. Cayce

Clerk

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.

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No. 09-11087

controlled substance. Epps was sentenced to 168 months of imprisonment and

two years of supervised release.

In his motion for a COA, Epps argues that counsel was ineffective for

failing to (1) move to dismiss the indictment because it did not specify the

chemical quantity and advise him that the indictment was deficient on this

basis; (2) correctly advise him of his sentencing exposure under the Guidelines;

(3) object to the district court’s calculation of the chemical quantity; (4) object to

the enhancement of his sentence on the basis of a chemical quantity that was not

charged in the indictment or proven beyond a reasonable doubt, in violation of

Apprendi v. New Jersey, 530 U.S. 466 (2000); (5) object to the district court’s

treatment of the Guidelines as mandatory; (6) object to the district court’s failure

to advise him of his appeal rights at sentencing, in violation of Federal Rule of

Criminal Procedure 32; and (7) correctly advise him of his appeal rights. Epps

also argues that counsel was ineffective for failing to challenge in a direct appeal

(1) the chemical quantity; (2) the Apprendi error; and (3) the district court’s

treatment of the Guidelines. Epps argues further that he was deprived of his

right to appeal by the district court, which failed to apprise him of his right to

appeal at sentencing.

Epps has made a substantial showing of the denial of a constitutional right

regarding his claim that counsel was ineffective for erroneously advising him

that he had no right to appeal. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel,

529 U.S. 473, 483-84 (2000). The record does not conclusively indicate whether

counsel erroneously advised Epps of his appeal rights and whether Epps would

have filed a timely appeal but for counsel’s advice, making an evidentiary

hearing on that issue necessary. See United States v. Bartholomew, 974, F.2d

39, 41 (5th Cir. 1992). A COA is granted solely on this claim. The district court’s

judgment is vacated, and the case is remanded for further proceedings in

relation to that claim. We offer no opinion on the merits of this ineffective

assistance of counsel claim.

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No. 09-11087

With respect to his remaining claims, Epps has not shown that “reasonable

jurists would find the district court’s assessment of the constitutional claims

debatable or wrong.” Slack, 529 U.S. at 484. Consequently, his motion for a

COA is denied as to those claims. Id.

COA GRANTED IN PART; COA DENIED IN PART; VACATED AND

REMANDED.

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