IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-40778 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EVERETT NEIL AUSTIN,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. C-98-CV-560 USDC No. C-96-CR-286 -------------------- January 25, 2000

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

Everett Neil Austin seeks a certificate of appealability (“COA”)

to appeal the district court’s denial of his

motion. He argues that counsel was ineffective in failing

to conduct adequate pretrial investigation; in failing to follow

through with his pretrial motions; in failing to object to the

Government’s questions concerning his prior arrest for criminal

mischief; and in refusing to allow him to testify. He also

asserts that the decision to testify was his alone to make, that

he did not knowingly waive his right to testify, and that he was

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

denied his constitutional right to testify.

To obtain a COA, Austin must make a substantial showing of

the denial of a constitutional right. See § 2253(c)(2). He has

not made such a showing with regard to any of his claims of

ineffective assistance of counsel. He has, however, made the

requisite showing with regard to his claim that his

constitutional rights were violated when his counsel refused to

permit him to testify.

Nevertheless, Austin’s allegation is too conclusional to

justify the further investment of judicial resources at this

juncture. Accordingly, we GRANT him a COA on this issue, VACATE

the district court’s judgment, and REMAND with instructions that

Austin is to file a supplement to his § 2255 motion setting forth

in greater detail the circumstances surrounding his failure to

testify. See United States v. Martinez,

(5th Cir. 1999). If, once this is done, the record does not

conclusively show that Austin is entitled to no relief, the

district court is directed to conduct an evidentiary hearing to

determine whether Austin was denied his right to testify. See

United States v. Hughes,

(5th Cir. 1981);

§ 2255. Austin’s request for COA on his other issues is DENIED.

COA GRANTED in part, DENIED in part; VACATED AND REMANDED.