     Case: 17-41161      Document: 00514619464         Page: 1    Date Filed: 08/28/2018




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

                                      No. 17-41161                            FILED
                                                                        August 28, 2018
                                                                         Lyle W. Cayce
UNITED STATES OF AMERICA,                                                     Clerk

                                                 Plaintiff-Appellee

v.

EDUARDO H. RAMIREZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 7:17-CV-382
                             USDC No. 7:16-CR-333-1


Before JONES, HAYNES, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Eduardo H. Ramirez, federal prisoner # 08117-027, moves for a
certificate of appealability (COA) to appeal the district court’s dismissal
without prejudice as premature of his 28 U.S.C. § 2255 motion challenging his
guilty plea conviction for conspiracy to possess with intent to distribute 1000
kilograms or more of marijuana. He argues that (1) the district court erred in
dismissing his § 2255 motion as premature because he did not file a notice of


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-41161

appeal in this case; (2) the notice of appeal that he filed in a related case should
have been construed as a notice of appeal in this case as well; and (3) his trial
counsel was ineffective because he failed to file a notice of appeal in this case,
despite Ramirez’s request that he do so.
      To obtain a COA, Ramirez must make a substantial showing of the
denial of a constitutional right.     See 28 U.S.C. § 2253(c)(2); Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003). When, as in this case, a district court denies
relief based on procedural grounds, a COA should issue when a prisoner
establishes, at least, that “jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the district court was correct
in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also
Houser v. Dretke, 395 F.3d 560, 562 (5th Cir. 2004).
      Ramirez has shown that reasonable jurists would debate whether the
district court erred in dismissing his § 2255 motion without prejudice as
premature based on a finding that he had a pending direct appeal.               See
Gonzalez, 565 U.S. at 140-41; Slack, 529 U.S. at 484. Ramirez appealed only
case no. 7:12-CR-02018-002. He did not appeal case no. 7:16-CR-00333-1, the
subject of the current § 2255 motion. Reasonable jurists would also debate
whether he states a valid claim of the denial of a constitutional right
concerning whether his trial counsel was ineffective. See Houser, 395 F.3d at
562; Roe v. Flores-Ortega, 528 U.S. 470, 483-86 (2000); see also United States
v. Tapp, 491 F.3d 263, 265-66 (5th Cir. 2007). Accordingly, we GRANT his
COA motion on the issue whether the district court erred in dismissing his
§ 2255 motion without prejudice as premature. Further, because we conclude
that additional briefing is not required, we VACATE the district court’s
judgment, and REMAND to the district court for further proceedings



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                                No. 17-41161

consistent with this opinion. See Whitehead v. Johnson, 157 F.3d 384, 388 (5th
Cir. 1998); FED. R. APP. P. 24. However, we offer no opinion on the resolution
of the merits of Ramirez’s § 2255 motion. Ramirez’s motion for leave to proceed
in forma pauperis on appeal is also GRANTED.




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