                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 January 21, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 03-50657
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

CURTIS DARRYL NORRIS,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                     USDC Nos. A-00-CV-593-JN
                               A-98-CR-281-2-JN
                       --------------------

Before JOLLY, WIENER, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Following a jury trial, Curtis Darryl Norris was convicted

of four charges related to the manufacture of methamphetamine.

The district court sentenced him to 240 months in prison and ten

years of supervised release.   Norris filed an unsuccessful 28

U.S.C. § 2255 motion to challenge this conviction and sentence.

Norris then moved this court for a certificate of appealability

(COA) to challenge the district court’s denial of his 28 U.S.C.


     *
        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that this opinion should not be published and is not precedent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. 03-50657
                                  -2-

§ 2255 motion.     He argued, inter alia, that counsel rendered

ineffective assistance for failure to file a direct appeal.       This

court granted his COA motion in part and vacated the underlying

judgment of the district court that denied Norris’ 28 U.S.C.

§ 2255 motion as to this claim.     This court determined that the

district court “made insufficient findings on the controlling

factual question, whether Norris requested counsel to file an

appeal and whether counsel agreed to do so.”     United States v.

Norris, No. 01-50779 at 2 (5th Cir. Apr. 16, 2002).     This court

thus remanded the case to the district court so that court could

make further factual findings on this “controlling factual

question.”   Id.

     The district court misunderstood this court’s previous

order.   Rather than making the appropriate factual findings, the

district court incorporated the same magistrate judge’s report

that it had previously accepted and denied Norris a COA.       The

magistrate judge’s report on which the district court relied did

not address the discrete issue delineated by the prior panel,

“whether Norris requested counsel to file an appeal and whether

counsel agreed to do so.”     Id.

     Norris again appears before this court.     He notes that it is

unclear whether a COA is now needed, so he moves this court for a

COA to the extent necessary.     He argues that this court should

grant him relief on his ineffective assistance claim.     He

alternatively argues that the district court made insufficient
                             No. 03-50657
                                  -3-

findings on remand and that this court should remand to the

district court for a second time so that the district court can

make the requisite findings.    This case is before this court in

an atypical procedural posture, and it is unclear whether COA is

necessary in this case.   We need not, however, resolve this issue

to dispose of this appeal.

     Because the district court did not make the specific

findings requested by this court, it is necessary to once again

remand this case to that court for further findings “on the

controlling factual question, whether Norris requested counsel to

file an appeal and whether counsel agreed to do so.”    Id.

Accordingly, we order that this case be remanded to the district

court for further findings on this specific issue.    As we noted

before, if the district court finds that counsel agreed, after

sentencing, to file a direct appeal, it has authority to grant 28

U.S.C. § 2255 relief if such relief is appropriate.    Norris’

motion for a COA on this issue is granted to the extent

necessary.   We decline to rule on the issue whether counsel

rendered ineffective assistance.

     COA GRANTED, TO EXTENT NECESSARY, ON ISSUE WHETHER DISTRICT

COURT MADE SUFFICIENT FINDINGS; CASE REMANDED FOR FURTHER FACTUAL

FINDINGS.
