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United States v. Isaac ( 2000 )


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  •                IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-40901
Summary Calendar
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES TIMOTHY ISAAC,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Eastern District of Texas
USDC No. 1:96-CV-187
_________________________________________________________________
May 4, 2000
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Charles Timothy Isaac (“Isaac”), federal prisoner #04252-078,
has filed a pro se appeal of the district court’s denial of, and
denial of leave to amend, his
    28 U.S.C. § 2255
     motion.      Isaac’s
motion challenged his 1993 guilty plea conviction for using and
carrying a firearm during and in relation to a drug trafficking
crime, in violation of
    18 U.S.C. § 924
    (c)(1), and possessing a
firearm after being convicted of a felony, in violation of
    18 U.S.C. § 922
    (g)(1).
*
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this opinion should not be published and is not precedent except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.
The record does not conclusively show that Isaac is entitled
to no relief with respect to:       (1) his claim that his guilty plea
was involuntary due to his counsel’s promise of an off-the-record
deal;   (2)   his   claim    that   his   counsel   provided   ineffective
assistance by erroneously advising him regarding the scope of
liability under § 924(c)(1); and (3) his claim that his counsel
provided ineffective assistance by failing to comply with his
request for a direct appeal.         Because these claims are thus not
futile, see § 2255, the district court abused its discretion in
denying Isaac’s motion for leave to amend his § 2255 motion in
order to assert them.       See Leffall v. Dallas Indep. Sch. Dist.,
    28 F.3d 521
    , 524 (5th Cir. 1994); see also Duff-Smith v. Collins,
    973 F.2d 1175
    , 1180 (5th Cir. 1992) (
    28 U.S.C. § 2254
     case).
Accordingly, the district court’s judgment is VACATED and this
case is REMANDED to the district court with the instruction to
grant Isaac leave to amend his § 2255 motion in order to assert the
above claims.   We neither express nor intimate any view as to the
claims’ ultimate merits. Finally, we decline to address the issues
raised in Isaac’s unamended § 2255 motion at this time in the light
2
of the possibility that the proceedings below may culminate in an
out-of-time appeal.   See Mack v. Smith,
    659 F.2d 23
    , 25-26 (1981).
VACATED and REMANDED.
3