                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 12, 2003

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 02-41568
                           Summary Calendar



UNITED STATES OF AMERICA

                       Plaintiff - Appellee

     v.

DARYL DEWAYNE CARTER

                       Defendant - Appellant

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                        USDC No. 6:01-CV-455
                       USDC No. 6:00-CR-5-1
                       --------------------

Before KING, Chief Judge, and JOLLY and PRADO, Circuit Judges.

PER CURIAM:*

     Daryl Dewayne Carter, Texas inmate # 596739, was granted a

certificate of appealability (COA) from the denial of his motion

to vacate his federal conviction and sentence for conspiracy to

possess with intent to distribute cocaine, which he filed

pursuant to 28 U.S.C. § 2255.    A COA was granted on the issue

whether the district court erred in holding that this court

addressed and rejected his claims of ineffective assistance of


     *
        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that this opinion should not be published and is not precedent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. 02-41568
                                  -2-

counsel in granting counsel’s Anders** motion, thereby

procedurally barring him from raising the claims pursuant to 28

U.S.C. § 2255.

     Our opinion granting counsel’s motion to withdraw and

dismissing the direct criminal appeal included the sentence,

"Carter has filed a response asserting that the district court

abused its discretion in denying his motion to withdraw his

guilty plea and that counsel was ineffective."    Not unreasonably,

the district court construed the opinion to mean that this court

had considered the merits of Carter’s ineffective assistance of

counsel claims.

     This court’s reference to Carter’s ineffective assistance of

counsel claims, however, meant only that Carter had made the

claims, not that we considered them on the merits, which would

have been a departure from our normal practice.    See United

States v. Gibson, 55 F.3d 173 (5th Cir. 1995).    Therefore, the

district court erred in holding that this court did address the

merits of Carter’s claims of ineffective assistance of counsel.

     Accordingly, with regard to the disposition of the

ineffectiveness claims, the district court’s judgment dismissing

Carter’s 28 U.S.C. § 2255 motion is vacated.    The case is

remanded to the district court for further consideration of

Carter’s claims of ineffective assistance of counsel.

     VACATED AND REMANDED


     **
          Anders v. California, 386 U.S. 738 (1967).
