     Case: 09-60800     Document: 00511082307          Page: 1    Date Filed: 04/16/2010




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

                                                  FILED
                                                                            April 16, 2010
                                     No. 09-60800
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

REGINALD LEVAND JOHNSON,

                                                   Defendant-Appellant




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 4:08-CV-112


Before KING, STEWART and HAYNES, Circuit Judges.
PER CURIAM:*
        Reginald Levand Johnson, federal prisoner # 12362-042, moves this court
for a certificate of appealability (COA) to appeal the district court’s denial of his
28 U.S.C. § 2255 motion, which challenged his jury trial conviction for violating
the Armed Career Criminal Act. Johnson was sentenced to 235 months in
prison.




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-60800    Document: 00511082307 Page: 2         Date Filed: 04/16/2010
                                 No. 09-60800

      In his COA motion, Johnson argues that trial counsel was ineffective for
failing to (1) object to the court’s jury instruction regarding a felon in possession
of a firearm; (2) investigate and obtain discovery material; (3) call alibi
witnesses; (4) inform him of a plea offer and inform the Government of his
intention to plead guilty to a lesser included offense; (5) cross-examine
government witnesses regarding exculpatory evidence; and (6) object to prior
offenses used to enhance his sentence and for failing to furnish the presentence
report prior to sentencing. Johnson contends further that appellate counsel was
ineffective for failing to raise the above issues on direct appeal and that the
district court erred by denying his § 2255 motion without first holding an
evidentiary hearing. Johnson also moves this court for authorization to proceed
in forma pauperis (IFP) on appeal. Johnson’s motion to proceed IFP on appeal
is granted.
      Johnson has made a substantial showing of the denial of a constitutional
right regarding his claim that counsel was ineffective for failing to communicate
the plea offer. See 28 U.S.C. § 2253(c)(2); Teague v. Scott, 60 F.3d 1167, 1170-71
(5th Cir. 1995). The record does not conclusively indicate whether counsel
communicated the plea offer of 15 years in prison, making an evidentiary
hearing on that issue necessary. See United States v. Bartholomew, 974 F.2d 39,
41 (5th Cir. 1992). A COA is granted solely on this claim. The district court’s
judgment is vacated, and the case is remanded for further proceedings in
relation to that claim. We offer no opinion on the merits of this ineffective
assistance of counsel claim.
      Johnson has failed to make a substantial showing of the denial of a
constitutional right in relation to his remaining claims.          See Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003). Consequently, a COA is denied as to those
claims. See id.
      COA GRANTED IN PART; COA DENIED IN PART; IFP GRANTED;
VACATED AND REMANDED.

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                             No. 09-60800




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