     Case: 12-50110      Document: 00512766868         Page: 1    Date Filed: 09/12/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 12-50110
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        September 12, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

DELBERT JAMES RATLIFF,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                              USDC No. 7:10-CV-11
                            USDC No. 7:08-CR-123-1


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Delbert James Ratliff, federal prisoner # 17544-280, as well as his wife
Debra, pleaded guilty to conspiracy to manufacture 50 grams or more of
methamphetamine and to possess pseudoephedrine with the intent to
manufacture methamphetamine. Relevant to this appeal, at the same time
that Ratliff was seeking § 2255 relief in the district court, so was Debra. Debra



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 12-50110

raised essentially the same Fourth Amendment claim and related claim of
ineffective assistance of counsel as Ratliff, namely that trial attorney’s failure
to file a motion to suppress constituted ineffective assistance of counsel and
rendered involuntary his guilty plea.
      As we explained in Debra’s appeal, “[t]o prove that claim, Ratliff was
required to show that (1) a suppression motion would have been meritorious,
(2) [his] counsel’s failure to file one was objectively unreasonable (the
‘performance’ prong), and (3) but for [his] counsel’s deficient performance in
that regard, [he] would not have pleaded guilty (the ‘prejudice’ prong).” United
States v. Debra Ratliff, 719 F.3d 422, 423 (5th Cir. 2013). Although the district
court rejected this claim, the court went on to grant a certificate of
appealability (“COA”) in both cases on the issue whether the suppression
motion would have been meritorious. As in Debra’s case, the district court did
not indicate whether it intended for the COA to include the independently
dispositive issues of performance and prejudice, and Ratliff did not ask this
court to expand the scope of the COA to include those issues.
      “A certificate of appealability may issue,” pursuant to 28 U.S.C.
§ 2253(c), “only if the applicant has made a substantial showing of the denial
of a constitutional right.”    Slack v. McDaniel, 529 U.S. 473, 481 (2000)
(emphasis added). “Where a federal habeas corpus petition, under 28 U.S.C.
§ 2244, or, as here, a motion to vacate, under 28 U.S.C. § 2255, raises a
constitutional claim with multiple elements, a COA may issue with respect to
that claim only if the defendant makes a substantial showing as to each
element.” Debra Ratliff, 719 F.3d at 424.
      Consistent with the action taken in Debra Ratliff, 719 F.3d at 424, we
VACATE the COA and REMAND for clarification as to whether Delbert Ratliff




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                                 No. 12-50110

has made a substantial showing of the denial of his Sixth Amendment right to
effective assistance of counsel and is entitled to a COA on that issue. See id.




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