     Case: 13-50303       Document: 00512381339         Page: 1     Date Filed: 09/20/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        September 20, 2013
                                       No. 13-50303
                                                                           Lyle W. Cayce
                                                                                Clerk
WILLIAM LEE NISWANGER,

                                                  Petitioner-Appellant

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 6:11-CV-97


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       William Lee Niswanger, Texas prisoner # 1562564, moves for a certificate
of appealability (COA) to appeal from the dismissal of his 28 U.S.C. § 2254
petition challenging his conviction under Texas law for impersonating a public
servant. He argues that the district court erred by dismissing on the merits his
claims that the ineffectiveness of his trial counsel in several respects caused him
to plead guilty.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 13-50303    Document: 00512381339     Page: 2   Date Filed: 09/20/2013

                                 No. 13-50303

      The district court did not consider whether the performance of Niswanger’s
counsel “fell below an objective standard of reasonableness” nor whether the “the
outcome of the plea process would have been different with competent advice.”
Lafler v. Cooper, 132. S. Ct. 1376, 1384 (2012) (internal quotation marks and
citations omitted). Consequently, Niswanger has shown that “reasonable jurists
would find the district court’s assessment of the constitutional claims debatable
or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). We therefore GRANT
both the motion for a COA and the motion for leave to proceed in forma pauperis,
DENY the motion for appointment of counsel as unnecessary, VACATE the
district court’s judgment, and REMAND to the district court for further
proceedings. See Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998); FED.
R. APP. P. 24.




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