               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 00-40673
                      USDC No. L-99-CR-706-1



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

DANTE JAVIER FLORES-GUTIERREZ,

                                         Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      --------------------
                        November 27, 2000

Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges.

PER CURIAM:*

     Dante Javier Flores-Gutierrez (“Flores”), federal prisoner

#87526-079, has applied for a certificate of appealability

(“COA”) for an appeal from the district court’s order denying his

motion under 28 U.S.C. § 2255.   See 28 U.S.C. § 2253(c)(1)(B).     A

COA may issue “only if the applicant has made a substantial

showing of the denial of a constitutional right.”   § 2253(c)(2);

see Slack v. McDaniel, 120 S. Ct. 1595, 1603-04 (2000).

     Flores argues for the first time in his COA application that

he is entitled relief because the Government refused to file a


     *
        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that this opinion should not be published and is not precedent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. 00-40673
                                -2-

motion for downward departure under U.S.S.G. § 5K1.1 for his

cooperation with authorities.   This court lacks jurisdiction to

review issues raised for the first time in a COA motion.     See

Whitehead v. Johnson, 157 F.3d 384, 387-88 (5th Cir. 1998).

     Flores also contends that his attorney rendered ineffective

assistance by failing to pursue downward departures under the

“safety valve” provision of the Sentencing Guidelines and based

on his status as a deportable alien.   Flores has failed to make a

substantial showing that reasonable jurists would find the

district court’s assessment of the constitutional claims

debatable or wrong as to this issue.     See Slack, 120 S. Ct. at

1604.   His motion for COA as to this issue is DENIED.

     Flores asserts that his counsel was ineffective for failing

to file a direct appeal in spite of Flores’ intention to do so.

In light of our holding in Brown v. Johnson, 224 F. 3d 461 (5th

Cir. 2000), the district court should have held an evidentiary

hearing on Flores’ claim that he requested counsel to file a

direct appeal on January 10, 2000, but was informed that the

time-period for an appeal had elapsed.    As Flores has stated a

facially valid claim of the denial of a constitutional right

regarding his claim that his counsel was ineffective for failing

to file a direct appeal, COA is GRANTED as to this issue.    We

vacate and remand to the district court for an evidentiary

hearing regarding this issue.

     COA GRANTED IN PART, DENIED IN PART; VACATED AND REMANDED.
