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

                                     No. 06-40856                         F I L E D
                                   Summary Calendar                     September 26, 2007

                                                                      Charles R. Fulbruge III
                                                                              Clerk
UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

CEDRIC ROMONE GARDNER

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 5:05-CV-201
                              USDC No. 5:04-CR-3
                              USDC No. 5:03-CR-27


Before JOLLY, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
       Cedric Romone Gardner, federal prisoner # 31182-177, moves for a
certificate of appealability (COA) to appeal from the district court’s denial of his
motion for relief pursuant to 28 U.S.C. § 2255. Garner also moves for leave to
appeal in forma pauperis (IFP); his IFP motion is GRANTED.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-40856

      Gardner challenges his convictions of conspiracy to distribute cocaine and
conspiracy to launder money. He contends that counsel was ineffective for
failing to file a notice of appeal or a motion for withdrawal pursuant to Anders
v. California, 386 U.S. 738 (1967). A COA may be issued only if Gardner makes
“a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). He “must demonstrate 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).
      Gardner has made a substantial showing of the denial of a constitutional
right regarding the contention that counsel was ineffective for failing to file a
notice of appeal. See United States v. Tapp, 491 F.3d 263, 266 (5th Cir. 2007).
Gardner alleges that he asked counsel to file a notice of appeal and that counsel
did not file one. The record does not conclusively indicate that Gardner did not
ask counsel to file a notice of appeal, making an evidentiary hearing on that
issue necessary. See id. COA is GRANTED solely on the issue whether counsel
was ineffective for failing to file a notice of appeal. The district court’s judgment
is VACATED and the case is REMANDED for further development.
      Gardner contends that counsel was ineffective for failing to object to the
standard of proof employed to make sentencing findings and failing to object to
the alleged constructive amendment of his indictment. Gardner has failed to
make the showing necessary to obtain a COA on that issue, and COA is
DENIED.      Gardner contends that counsel was ineffective for failing to object
to the use of three prior convictions he argues should not have been used to
enhance his sentence. We lack jurisdiction to address this contention, which
Gardner raises for the first time on appeal, see Hughes v. Johnson, 191 F.3d 607,
613 (5th Cir. 1999), and, as to that issue, COA is DENIED.
      IFP GRANTED; COA GRANTED in part; COA DENIED in part;
VACATED AND REMANDED.



                                         2
