IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-20236

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERT ARTHUR HALL,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC Nos. H-98-CV-1565, H-95-CR-201-ALL - - - - - - - - - - December 6, 1999

Before HIGGINBOTHAM, DeMOSS, STEWART, Circuit Judges.

PER CURIAM:*

Robert Arthur Hall, federal prisoner # 38261-079, requests a

certificate of appealability (COA) to appeal the magistrate

judge’s dismissal of his

motion. Hall raised

the following issues in his request for a COA: (1) counsel

rendered ineffective assistance of counsel; (2) the conviction

was based on evidence obtained through an illegal search and

seizure; and (3) the district court erred when it denied

counsel’s motion to withdraw.

On the first two issues, Hall has failed to make a

substantial showing of the denial of a constitutional right. See

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-20236 -2-

(c)(2). However, Hall has made a credible

showing that the magistrate judge erred when it dismissed the

third issue. See Whitehead v. Johnson,

(5th

Cir. 1998). When it dismissed the motion-to-withdraw claim, the

magistrate judge incorrectly concluded that Hall had raised the

issue on direct appeal and is barred from relitigating it in a

collateral § 2255 proceeding. The record reveals that Hall did

not raise this issue on appeal. See United States v. Hall, No.

96-20717, (5th Cir. May 22, 1997)(unpublished). Once it is

determined that the magistrate judge erred when it dismissed a

claim on procedural grounds, this court must vacate and remand

for consideration of the merits of the claim in the first

instance, because this court lacks jurisdiction to consider the

merits of Hall’s underlying substantive claim. See Whitehead,

. Accordingly, we GRANT a COA and VACATE AND

REMAND for consideration of the issue whether the magistrate

judge erred when it denied counsel’s motion to withdraw.