                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS           April 22, 2003
                       FOR THE FIFTH CIRCUIT
                                                           Charles R. Fulbruge III
                                                                   Clerk

                            No. 02-51054
                          Summary Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

JAMES DEAN MILLER,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                       USDC No. W-02-CV-224
                     USDC No. W-00-CR-126-ALL
                       --------------------

Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     James Dean Miller, Texas prisoner # 1051356, seeks a

certificate of appealability (COA) to appeal the denial of his 28

U.S.C. § 2255 motion.   He also moves for in forma pauperis (IFP)

status on appeal.    He argues that the district court erred in its

application of the procedural default rule.

     Miller’s 28 U.S.C. § 2255 motion challenges the legality of

the search of his home based on exigent circumstances.       On direct


     *
        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that this opinion should not be published and is not precedent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.
                               O R D E R
                             No. 02-51054
                                  -2-

appeal, Miller made no challenge to the trial court’s

determination that exigent circumstances justified the search,

and, therefore, any such challenge was deemed waived.     See United

States v. Miller, No. 01-50542 (5th Cir. Feb. 1, 2002)

(unpublished).   Consequently, the district court erred insofar as

it applied the bar based on its finding that the Fourth Amendment

issue raised in his 28 U.S.C. § 2255 motion was identical to the

one raised and rejected on direct appeal.

     Miller’s claim is nevertheless procedurally barred because

he failed to raise the exigent circumstances issue on direct

appeal.    See United States v. Kallestad, 236 F.3d 225, 227 (5th

Cir. 2000).   Miller has therefore waived the exigent-

circumstances issue for a collateral attack on his conviction,

unless he demonstrates cause for the default and prejudice as a

result.    See Id.   Ineffective assistance of counsel can meet the

cause and prejudice requirement for overcoming procedural

default.   Id.

     Miller has raised for the first time in this court a claim

that appellate counsel was ineffective and acted in contravention

to Miller’s instructions when counsel chose to attack the

legality of the search on the consent-exception only.    Miller was

not afforded the opportunity to present a cause and prejudice

argument in the district court because the district court invoked

the procedural default rule sua sponte and without notice.
                            O R D E R
                          No. 02-51054
                               -3-

     COA and IFP are therefore granted, the judgment is vacated,

and the case is remanded to allow Miller an opportunity to

present his cause and prejudice argument to the district court.

     COA and IFP GRANTED; Judgment VACATED and Case REMANDED.
