IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-20194 Summary Calendar

HOWARD RALPH RICH,

Petitioner-Appellant,

versus

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

--------------------

Appeal from the United States District Court for the Southern District of Texas USDC No. H-99-CV-1500 -------------------- September 15, 2000

Before SMITH, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

Howard Ralph Rich, Texas prisoner #847823, appeals the

summary-judgment dismissal of his

petition. A

COA may issue only if the applicant has made a “substantial

showing of the denial of a constitutional right.” § 2253(c)(2).

Any doubt about issuing a COA should be resolved in favor of

granting it. Fuller v. Johnson,

(5th Cir.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. O R D E R No. 00-20194 - 2 -

1997).

Rich avers that the State withheld evidence in violation of

Brady and that counsel was ineffective because he was operating

under a conflict of interest. These claims are raised for the

first time in Rich’s brief in support of his request for a COA.

This court lacks jurisdiction to review a claim raised for the

first time in a COA application. Whitehead v. Johnson,

(5th Cir. 1998).

Rich also avers that counsel was ineffective for failing to

investigate and call witnesses. Rich has failed to make a

substantial showing of the denial of a constitutional right with

regard to this claim. See § 2253(c)(2)

Lastly, Rich contends that counsel was ineffective for

advising him that a confession existed. Rich avers that because

no confession existed, counsel’s statement that the State was in

possession of a confession was erroneous and rendered his

subsequent guilty plea involuntary. Rich contends that had he

known that there was no confession, he would have insisted upon

going to trial.

Rich has made a substantial showing of the denial of a

constitutional right with regard to this last claim. In light of

the record as it stands, a genuine issue of material fact

precluding the grant of summary judgment existed, namely, whether

counsel told Rich that a confession existed. Rich has submitted

a letter from counsel which lends support to his argument and

should be considered by the district court in the first instance.

The district court may wish to consider whether affidavits and/or O R D E R No. 00-20194 - 3 - an evidentiary hearing is indicated.

Accordingly, we GRANT COA, vacate the district court’s

decision in part, and remand the case for development of the

record and further findings of fact on the issue whether counsel

was ineffective for advising Rich that a confession existed. COA

is DENIED with regard to Rich’s other claims.

COA GRANTED IN PART AND DENIED IN PART; JUDGMENT VACATED IN

PART AND CASE REMANDED.