     Case: 09-11087     Document: 00511146192          Page: 1    Date Filed: 06/18/2010




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

                                                 FILED
                                                                            June 18, 2010
                                     No. 09-11087
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

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


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-11087     Document: 00511146192 Page: 2         Date Filed: 06/18/2010
                                  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.

                                          2
  Case: 09-11087    Document: 00511146192 Page: 3      Date Filed: 06/18/2010
                                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.




                                        3
