                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 January 4, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 05-51552
                          Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

STEPHEN DOUGLAS JULIAN,

                                    Defendant-Appellant.

                       ---------------------
          Appeal from the United States District Court
                for the Western District of Texas
                        USDC No. 6:05-CV-169
                     USDC No. 6:03-CR-252-ALL
                       ---------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Stephen Douglas Julian, federal prisoner # 35886-180,

requests a certificate of appealability (COA) to appeal the

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

to his guilty-plea conviction for manufacturing methamphetamine

within 1000 feet of a school.   In his motion, Julian argued that

trial counsel rendered ineffective assistance at sentencing and

that his sentence ran afoul of United States v. Booker, 543 U.S.

220 (2005).

     *
        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that this opinion should not be published and is not precedent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. 05-51552
                                 - 2 -

     A COA may issue only if the movant “has made a substantial

showing of the denial of a constitutional right.”    28 U.S.C.

§ 2253(c)(2).   “When the district court denies [collateral

relief] on procedural grounds without reaching the prisoner’s

underlying constitutional claim, a COA should issue when the

prisoner shows, at least, that jurists of reason would find it

debatable whether the [motion] states a valid claim of the denial

of a constitutional right and that jurists of reason would find

it debatable whether the district court was correct in its

procedural ruling.”   Slack v. McDaniel, 529 U.S. 473, 484 (2000).

     Julian fails to address the district court’s determination

that Booker does not apply retroactively to cases on collateral

review.   Accordingly, he is deemed to have abandoned the issue on

appeal.   Yohey v. Collins, 985 F.2d 222, 224-25.   COA is DENIED

as to this issue.

     However, Julian has made a substantial showing of the denial

of a constitutional right with regard to his claim that the

district court erred in finding that the appeal-waiver provision

in his plea agreement barred his claim that counsel was

ineffective at sentencing.    Although Julian waived his right to

challenge his sentence in any postconviction proceeding, he

specifically reserved the right to challenge his sentence based

on a claim of ineffective assistance of counsel.    Accordingly,

COA is GRANTED as to this issue, the district court’s judgment of

dismissal is VACATED in part, and the case is REMANDED to the
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                           No. 05-51552
                               - 3 -

district court to consider the merits of Julian’s ineffectiveness

claim.   See Houser v. Dretke, 395 F.3d 560, 562 (5th Cir. 2004).

Julian’s motion to proceed in forma pauperis (IFP) is GRANTED.

     COA DENIED IN PART AND GRANTED IN PART; JUDGMENT VACATED IN

PART AND REMANDED FOR FURTHER PROCEEDINGS; IFP GRANTED.
