                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   April 4, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-50968
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

DAVID LEE JOHNSON,

                                    Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                 for the Western District of Texas
                        USDC No. 6:04-CV-215
                       USDC NO. 6:03-CR-16-1
                        --------------------

Before GARZA, DEMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     David Lee Johnson, federal prisoner # 26676-180, seeks a

certificate of appealability (“COA”) to appeal the district

court’s denial of his 28 U.S.C. § 2255 motion challenging his

guilty-plea conviction to manufacture of methamphetamine.

Johnson also moves for leave to proceed in forma pauperis

(“IFP”).   In order to obtain a COA, Johnson must demonstrate that

“reasonable jurists would find the district court’s assessment of

the constitutional claims debatable or wrong.”   Slack v.

     *
       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this opinion should not be published and is not precedent except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. 04-50968
                                 -2-

McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v. Cockrell,

537 U.S. 322, 338 (2003).

     Johnson argues that the district court erroneously concluded

that his ineffective-assistance-of-counsel claim was procedurally

defaulted.    Johnson is correct.   A claim of ineffective

assistance of counsel may be raised for the first time in a 28

U.S.C. § 2255 motion.    See Massaro v. United States, 538 U.S.

500, 509 (2003).

     Johnson also argues that his trial counsel rendered

ineffective assistance by failing to file a notice of appeal on

his behalf, despite Johnson’s request that he do so.     COA is

GRANTED on the question whether and when Johnson requested an

appeal and the advice or information provided by counsel.     See

Roe v. Flores-Ortega, 528 U.S. 470, 477-78, 485-86 (2000).        This

case is REMANDED for consideration of this issue in the first

instance by the district court and for an evidentiary hearing, if

necessary.    To assist the district court in its consideration of

this issue and Johnson’s related issues concerning the appeal

waiver and the Government’s alleged breach of the plea agreement,

and to assist with any subsequent appellate review, Johnson is

advised that, if he meets the requirements, he should move in the

district court for production at Government expense of the

transcripts of the rearraignment and sentencing proceedings.        See

28 U.S.C. § 753(f); Harvey v. Andrist, 754 F.2d 569, 571 (5th

Cir. 1985).
                          No. 04-50968
                               -3-

     Johnson further argues that his sentence violated the Sixth

Amendment and Blakely v. Washington, 124 S. Ct. 2531 (2004).     In

light of our order to grant COA and remand for further

consideration, we DEFER ruling on this issue.   Johnson is advised

that if the district court denies relief on the aforementioned

claim, he should address this claim in a future COA request.

Johnson’s motion for IFP is GRANTED.

     COA GRANTED; IFP GRANTED; VACATED AND REMANDED.
