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

                                                 FILED
                                                                            July 10, 2009

                                     No. 07-41063                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



UNITED STATES OF AMERICA

                                                   Plaintiff - Appellee
v.

JIMMY RAY EARL MERRIFIELD

                                                   Defendant - Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 4:05-CV-421
                             USDC No. 4:03-CR-84-11


Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       Pursuant to a written plea agreement, Jimmy Ray Earl Merrifield pled
guilty to conspiracy to manufacture, distribute, or possess with the intent to
manufacture, distribute, or dispense methamphetamine and possession of a
firearm by a drug user. As part of the plea agreement, Merrifield waived the
right to appeal any issue, except issues related to the application of the
Sentencing Guidelines or the basis of an upward departure.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 07-41063

       Merrifield filed a 28 U.S.C. § 2255 motion, arguing ineffective assistance
of counsel at both trial and on appeal.              The district court found that the
ineffective assistance claims were barred by the appeal waiver.                    Merrifield
requested a certificate of appealability, but did not address the district court’s
determination that his ineffective assistance of counsel claims were barred by
the appeal waiver. This Court granted Merrifield’s COA with respect to (1)
whether this court should take cognizance of the unraised issue of whether the
district court erred in finding that Merrifield's ineffective assistance claims were
barred by the appeal waiver in Merrifield's plea agreement ; and (2) if this court
takes cognizance of the unraised issue, whether the district court erred in its
procedural ruling.
       The Government concedes that this Court has discretion to consider
whether the district court erred in finding that Merrifield’s ineffective assistance
claims were barred by the appeal waiver despite Merrifield not raising the issue
in his pro se request for a COA.
       In light of the Government’s concession, we exercise our discretion to
address the issue.1 The appeal waiver was silent as to Merrifield’s right to
collaterally challenge his conviction and sentence under § 2255. The district
court erred in finding that the waiver barred review of Merrifield’s ineffective
assistance of counsel claims brought through a § 2255 motion.2
       We VACATE the district court’s denial of Merrifield’s § 2255 motion in
part and REMAND for the consideration of Merrifield’s ineffective assistance
claims.


       1
           See Castro v. U.S., 540 U.S. 375, 381–83 (2003).
       2
         See U.S. v. Hollins, 97 F. App’x 477, 479 (5th Cir. 2004) (defendant “waived, without
exception, his right to bring a collateral attack on his sentence under § 2255"); U.S. v. White,
307 F.3d 336, 338 (5th Cir. 2002) (“The plea agreement also contained a waiver of the right to
appeal, expressly including a waiver of White's right to challenge his sentence under 28 U.S.C.
§ 2255.”).

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