IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-30725 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRANCISCO LOPEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Louisiana USDC No. 97-CV-549 USDC No. 93-CR-20046-02 --------------------

September 27, 1999

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

Francisco Lopez, federal prisoner # 56053-079, appeals the

district court’s denial of his motion to vacate sentence pursuant

to

. Lopez contends that the district court

erred in refusing to grant relief from a sentence imposed in

excess of the statutory maximum and in failing to consider his

assertions of double jeopardy and ineffective assistance of

counsel. The district court denied relief on Lopez’s excessive-

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 97-30725 -2-

sentence claim because the issue could have been raised on direct

appeal and Lopez had not shown cause and prejudice for his

failure to do so. United States v. Shaid,

(5th

Cir. 1991)(en banc). In his supplemental pleading following the

Government’s raising of procedural bar, Lopez did not attempt to

show cause and prejudice for his default in not raising the issue

of excessive sentence on direct appeal. As a result, this

portion of the district court’s opinion is AFFIRMED.

However, Lopez is correct in asserting that the district

court failed to consider his claims that he was subjected to

double jeopardy and that his trial counsel was ineffective for

failing to raise the double-jeopardy issue earlier. This court

lacks jurisdiction to consider claims not considered by the

district court in determining whether to grant a certificate of

appealability. Whitehead v. Johnson,

(5th

Cir. 1998). The district court’s denial of relief under § 2255

is therefore VACATED IN PART and the case REMANDED so that the

district court can consider the merits of these issues and

whether Lopez can show cause for and prejudice from his failure

to raise the issue of double jeopardy on direct appeal.

AFFIRM IN PART; VACATE AND REMAND FOR CONSIDERATION OF

ISSUES ON THE MERITS.