               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                             No. 98-30446




UNITED STATES OF AMERICA,

                                             Plaintiff-Appellee,

versus

THOMAS S. MACKIE, JR.,

                                             Defendant-Appellant.


           Appeal from the United States District Court
               for the Eastern District of Louisiana
                           (97-CV-1302-T)


                            March 30, 1999

Before HIGGINBOTHAM, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant Thomas S. Mackie, Jr., federal prisoner

#23922-034, seeks a certificate of appealability (COA) to appeal

the district court’s denial of his 28 U.S.C. § 2255 motion.         A COA

may be issued only if the movant has made a substantial showing of

the denial of a constitutional right.   See 28 U.S.C. § 2253(c)(2).

We resolve doubts about whether to grant a COA in favor of the

movant.   See Fuller v. Johnson, 114 F.3d 491, 495 (5th Cir.), cert.

denied, 118 S. Ct. 399 (1997).


     *
        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that this opinion should not be published and is not precedent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.
                                     I.

                            FACTS AND PROCEEDINGS

     After a jury convicted him of one count of money-laundering

(Count 18) of an 18-count indictment, Mackie entered into a plea

bargain with the government in which he agreed to plead guilty to

four more counts in exchange for the government’s agreement to

dismiss the remaining counts against him.       In the pertinent part of

the plea agreement, Mackie waived his right, under 18 U.S.C. §

3742, to appeal his conviction on Count 18 or his sentence on any

count.   He “also agree[d] not to contest his sentence, or the

manner   in   which    it   was   determined,   in   any   post-conviction

proceeding, such as one under 28 U.S.C. § 2255.”

     Mackie subsequently filed a § 2255 motion, alleging that he

was denied effective assistance of counsel at his jury trial on

Count 18 and challenging his conviction on Count 18 on the basis of

insufficiency of the evidence and fraud on the court by the

government.     The    district   court   determined   that   in   his   plea

agreement Mackie waived his right to challenge, in a § 2255

proceeding, everything other than his ineffective assistance of

counsel claims.1      On appeal, Mackie argues that he did not waive

his right to challenge his conviction on Count 18 in a § 2255

proceeding and that the district court erred in concluding he did.



     1
        A defendant can waive his right to attack his conviction
in a 28 U.S.C. § 2255 proceeding; however, such a waiver may not
always apply if the collateral attack is based on ineffective
assistance of counsel. United States v. Wilkes, 20 F.3d 651, 653
(5th Cir. 1994).

                                      2
                                       II.

                                     ANALYSIS

A.     COA

       If Mackie is to obtain a COA on the district court’s dismissal

based   on    waiver    in   the    plea-agreement    ——   an    issue   not   of

constitutional dimension —— Mackie must first make a credible

showing of error by the district court.           See Murphy v. Johnson, 110

F.3d    10,    11     (5th   Cir.    1997)   (applying     COA    standard     to

nonconstitutional issue of exhaustion of state remedies).                Only if

Mackie makes such a showing will we consider whether his underlying

claim satisfies the COA standard.            Whitehead v. Johnson, 157 F.3d

384, 386 (5th Cir. 1998).

       We construe Mackie’s plea agreement with the government by

applying      legal    principles     governing     the    interpretation      of

contracts.     See United States v. Moulder, 141 F.3d 568, 571 (5th

Cir. 1998) (“[p]lea agreements are contractual in nature, and are

to be construed accordingly”); United States v. Asset, 990 F.2d

208, 215 & n.6 (5th Cir. 1993).                 Mackie waived his right to

challenge his conviction and sentence on direct appeal; however, as

to his right to institute post-conviction collateral challenges, he

waived only as to his sentence; there was no mention of his

conviction in this regard.             Under the plain language of the

agreement and the maxim inclusio unius est exclusio alterius,

Mackie did not waive his right to challenge his conviction on Count

18 in a § 2255 proceeding.          The government could have required him

to do so, but did not.         Mackie has thus made a credible showing


                                        3
that the district court erred in concluding that he waived his

right to raise all claims regarding his conviction, except for

ineffective-assistance-of-counsel, in a § 2255 motion.

     Nevertheless, if we were to proceed to the second step of the

Murphy test at this juncture, we would be acting prematurely.                   The

district     court   has    not    addressed     either      Mackie’s   underlying

challenges to his conviction or whether review of those issues is

otherwise precluded.        A prerequisite of appellate jurisdiction is

that the district court deny a movant a COA on an issue before that

movant may request one from us.            See Whitehead, 157 F.3d at 387-88.

We therefore grant a COA on the question whether in his plea

agreement Mackie waived his right to raise a post-conviction

challenge    to   his    conviction    on      Count   18,   which   question   was

indisputably resolved by Mackie’s COA application and the record;

and we vacate the judgment of the district court denying COA on

grounds    of   waiver     and    remand   to   that   court    to   consider   the

substance of Mackie’s habeas claims, see id. at 388, except for his

claim of ineffective assistance of counsel, which we now proceed to

discuss.

B.   Ineffective Assistance of Counsel

     Mackie also contends that he was denied effective assistance

of counsel.       He bases this claim on trial counsel’s failure to

argue for a jury instruction on entrapment during the trial on

Count 18.2      Mackie makes no attempt to show, however, that there

     2
        Mackie does not raise on appeal any of his other
allegations of ineffective assistance of counsel. Accordingly,
these issues have been waived on appeal. See Brinkmann v. Dallas

                                           4
was “sufficient evidence from which a reasonable jury could find

entrapment.”   See United States v. Bradfield, 113 F.3d 515, 520-21

(5th Cir. 1997); Mathews v. United States, 485 U.S. 58, 62 (1988).

Neither has he demonstrated that counsel’s tactics —— to finesse an

entrapment defense and focus instead on the absence of proof of the

elements of the offense —— was outside the realm of reasonable

trial strategy.   See Strickland v. Washington, 466 U.S. 668, 687

(1984); Bridge v. Lynaugh, 838 F.2d 770, 773 (5th Cir. 1988) (in

evaluating ineffective-assistance claims, we indulge in “a strong

presumption” that counsel’s representation fell “within the wide

range of reasonable professional competence, or that, under the

circumstances, the challenged action `might be considered sound

trial strategy.’”).   As Mackie has failed to make a substantial

showing of the denial of a constitutional right regarding his

ineffective assistance of counsel claim, we deny a COA on this

issue.   See § 2253(c)(2).

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

REMANDED.




County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987)
(issues which are not briefed are waived).

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