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

                                                                  FILED
                                                                  May 19, 2008
                                No. 07-51278
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

HERNALDO PEREA BELTRAN, also known as Nalo, also known as Naldo

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                            USDC No. 7:07-CV-37
                           USDC No. 7:00-CR-46-1


Before KING, DAVIS and CLEMENT, Circuit Judges.
PER CURIAM:*
      Hernaldo Perea Beltran (Beltran), federal prisoner # 51158-180, seeks a
certificate of appealability (COA) to appeal the district court’s dismissal of his
28 U.S.C. § 2255 motion challenging his conviction of conspiracy to distribute
and possess with intent to distribute over five kilograms of cocaine. Beltran also
moves for leave to proceed in forma pauperis (IFP).




      *
      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should not be published and is not precedent except under the limited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. 07-51278

      To obtain a COA, a movant must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where the district
court’s dismissal is on the merits, the movant “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). An
applicant satisfies the Slack standard by showing that “jurists could conclude
the issues presented are adequate to deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
      Beltran does not argue, as he argued in the district court, that his counsel
was ineffective for failing to notify the court that he had met with authorities
prior to sentencing and thus qualified for a two-level sentence reduction for
acceptance of responsibility. Accordingly, he has abandoned this issue. See
Hughes v. Johnson, 191 F.3d 607, 612-13 (5th Cir. 1999).
      Beltran argues that his appellate counsel was ineffective for incorrectly
advising him after his sentencing that if he dismissed his appeal, he would be
able to receive a sentence reduction under U.S.S.G. § 5K1.1 for providing
substantial assistance to authorities. He also contends that his counsel was
ineffective for failing to advise him before he pleaded guilty that he could be held
responsible for more than 500 grams of cocaine under the relevant conduct
provision of the Sentencing Guidelines and that the district court should have
held an evidentiary hearing as to this issue. Beltran has not met the COA
standard as to these issues, and thus his motion for a COA as to these issues is
denied.
      Beltran also argues that his counsel was ineffective for failing to inform
him that if he delayed pleading guilty until the day of trial, he would not be able
to receive a reduction in his sentence based on his acceptance of responsibility
and that the district court should have held an evidentiary hearing concerning
this issue. Although Beltran’s trial counsel filed an affidavit in the district court
addressing this issue, contested factual issues may not be decided on the basis

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of affidavits alone, and nothing in the record indicates whether Beltran knew
that an untimely plea of guilty would prevent him from receiving a reduction in
offense level for acceptance of responsibility. See United States v. Hughes, 635
F.2d 449, 451 (5th Cir. 1981). Because the motion, files, and record do not
conclusively show that Beltran is not entitled to relief concerning this issue and
because Beltran has shown that he would be entitled to postconviction relief as
a legal matter if his factual allegations are true, jurists could conclude that the
issue whether the district court abused its discretion in failing to hold an
evidentiary hearing concerning this issue is “adequate to deserve encouragement
to proceed further.”      Miller-El, 537 U.S. at 327; see United States v.
Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992); Friedman v. United States, 588
F.2d 1010, 1015 (5th Cir. 1979).
      Accordingly, COA is granted on the issue whether Beltran’s counsel was
ineffective for failing to inform him that if he delayed pleading guilty until the
day of trial, he would not be able to receive a reduction in his sentence due to his
acceptance of responsibility. The judgment of the district court is vacated in
part, and the case is remanded for an evidentiary hearing. We offer no opinion
on the merits of the instant ineffective assistance of counsel claim. Beltran’s
motion for leave to proceed IFP is granted.
    COA GRANTED IN PART, DENIED IN PART; JUDGMENT VACATED
IN PART AND REMANDED; MOTION FOR LEAVE TO PROCEED IFP
GRANTED.




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