          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                  Fifth Circuit

                                                                  FILED
                                                                  May 20, 2008
                                No. 07-30778
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

MIKE JAMES

                                            Defendant-Appellant


                 Appeals from the United States District Court
                     for the Eastern District of Louisiana
                           USDC No. 2:06-CV-5970
                            USDC No. 2:05-CR-59-2


Before REAVLEY, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
      Mike James, federal prisoner # 29268-034, 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 conviction for conspiracy to possess
cocaine hydrochloride with intent to distribute and possession of 500 grams or
more of cocaine hydrochloride with intent to distribute. James contends that his
indictment and judgment are flawed and that his Fourth Amendment rights


      *
      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should not be published and is not precedent except under the limited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. 07-30778

were violated. He also argues that counsel rendered ineffective assistance by
failing to file pretrial motions, by failing to investigate, and by failing to pursue
a direct appeal. He contends that the district court erred by denying his § 2255
motion without first holding an evidentiary hearing. James also moves this
court for authorization to proceed in forma pauperis (IFP) on appeal. James’s
motion to proceed IFP on appeal is granted.
      James has made a substantial showing of the denial of a constitutional
right regarding his claim that counsel was ineffective for failing to file a notice
of appeal. See 28 U.S.C. § 2253(c)(2); United States v. Tapp, 491 F.3d 263, 266
(5th Cir. 2007). The record does not conclusively indicate whether James asked
counsel to file a notice of appeal, making an evidentiary hearing on that issue
necessary. See Tapp, 491 F.3d at 266. A COA is granted solely on the issue
whether counsel was ineffective for failing to file a notice of appeal. The district
court’s judgment is vacated and the case is remanded for further proceedings in
relation to that claim.
      James has failed to make a substantial showing of the denial of a
constitutional right in relation to his remaining issues. See Miller-El v. Cockrell,
537 U.S. 322, 327 (2003). Consequently, COA is denied as to those issues. See
id.
      COA GRANTED IN PART; COA DENIED IN PART; IFP GRANTED;
VACATED AND REMANDED.




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