IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-20482 USDC No. H-97-CV-1404

HUMBERTO HINOJOSA,

Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA,

Defendant-Appellee.

--------------------- Appeal from the United States District Court for the Southern District of Texas ---------------------

February 4, 1999

Before DAVIS, DUHE’, and PARKER, Circuit Judges.

PER CURIAM:

Humberto Hinojosa, federal prisoner # 48660-079, requests a

Certificate of Appealability (COA) to appeal the district court’s

denial of his

motion. Hinojosa moves to

substitute a new motion for COA and a brief in support for his

original motion and brief. Hinojosa’s motion to substitute his

brief is GRANTED and his original brief is STRICKEN.

Hinojosa argues that he was denied effective assistance of

habeas counsel. Hinojosa has not made a substantial showing of

the denial of a constitutional right with regard to this claim.

See Irving v. Hargett,

(5th Cir. 1995)(holding

that a petitioner has no constitutional right to counsel in

post-conviction proceedings and cannot claim ineffective O R D E R No. 98-20482 - 2 -

assistance of habeas counsel).

Hinojosa claims that the district court erred in denying his

motion for relief from judgment. This issue is not adequately

argued in the body of Hinojosa’s appellate brief and is deemed

abandoned. See Yohey v. Collins,

(5th Cir.

1993).

Hinojosa argues that the district court erred in calculating

the quantity of drugs attributable to him for sentencing

purposes. Hinojosa’s claim that the sentencing court misapplied

the Sentencing Guidelines is not cognizable under § 2255. See

United States v. Seyfert,

(5th Cir. 1995).

Hinojosa argues that his due process rights were violated

because the evidence supporting his sentence lacks sufficient

indicia of reliability. The Government responded that Hinojosa

procedurally defaulted his due process claim by failing to raise

the issue on direct appeal. The district court summarily

dismissed Hinojosa’s motion for § 2255 relief without giving

Hinojosa an opportunity to respond to the affirmative defense.1

In so doing, the court noted that Hinojosa’s claims were without

merit but did not explain the basis for its conclusion. See

United States v. Daly,

(5th Cir. 1987)(holding

that the district court must state its findings of fact and

conclusions of law when ruling on a § 2255 motion).

1 See United States v. Samuels,

(5th Cir. 1995)(holding that a defendant is required to show both cause for the procedural default in not raising an issue on direct appeal and some form of actual prejudice that he suffered as a result of the error). O R D E R No. 98-20482 - 3 -

Hinojosa claims in his motion for COA that he has cause for

the procedural default because he received ineffective assistance

of trial and appellate counsel. The record does not conclusively

show that Hinojosa is entitled to no relief because Hinojosa

should have been given the opportunity to argue cause and

prejudice in the district court. Because the court did not state

its reasons for denying Hinojosa’s § 2255 motion, it is

impossible to determine whether Hinojosa’s claim was denied based

on the procedural default or on the merits. Accordingly, IT IS

ORDERED that Hinojosa’s motion for COA is GRANTED, the district

court’s order is VACATED and the case REMANDED for further

proceedings. See

(c)(2). On remand, the

district court should provide its findings and conclusions of

law. It should also consider whether to allow Hinojosa to amend

his § 2255 motion to incorporate claims of ineffective assistance

of counsel.

Because this case is being remanded for further proceedings,

we pretermit consideration of the other appellate issues raised

by Hinojosa. Hinojosa’s motion for leave to proceed in forma

pauperis (IFP) is GRANTED.

MOTION TO SUBSTITUTE BRIEF GRANTED; COA GRANTED; MOTION FOR

LEAVE TO PROCEED IFP GRANTED; VACATED AND REMANDED.