IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-30429 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MACK F. SLATE,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Louisiana USDC No. 02-CV-0077 No. 00-CR-20058-6 -------------------- September 9, 2002

Before JOLLY, DAVIS and PARKER, Circuit Judges.

PER CURIAM:*

Mack F. Slate, federal prisoner #10720-035, has filed a

motion for a certificate of appealability (COA) to appeal the

district court’s denial of his

motion and a

motion to proceed in forma pauperis (IFP) on appeal. Slate’s

motion challenged his convictions for intent to

distribute over 50 grams of cocaine base and aiding and abetting

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-30429 -2-

others and knowingly and intentionally distributing 56.02 grams

of cocaine base. To obtain a COA, Slate must make a substantial

showing of the denial of a constitutional right. See

(c)(2).

Slate argues that his counsel was ineffective for failing to

file a notice of appeal after he specifically requested that he

do so. He asserts that he continuously asked counsel to file a

notice of appeal, that counsel lied to him and told him the

appeal had been filed, and that he did not know that counsel was

lying until he called this court and found out no notice of

appeal had been filed. With the exception of similar allegations

to the district court that he requested an appeal on the day of

sentencing and that counsel agreed to file an appeal, these facts

were not alleged before the district court, and therefore, they

will not be considered by this court. See Whitehead v. Johnson,

(5th Cir. 1998); Theriot v. Parish of

Jefferson,

, 491 n.26 (5th Cir. 1999). Moreover, as

Slate seeks a COA only with respect to his ineffective-

assistance-of-counsel claim, his claim that

is

unconstitutional has been waived. See Hughes v. Johnson,

(5th Cir. 1999).

The record in this case does not demonstrate conclusively

that Slate is not entitled to relief. The record indicates that

counsel did not file a notice of appeal and that counsel did not

seek to withdraw from representation of Slate. It cannot be No. 02-30429 -3-

conclusively determined from the record whether Slate instructed

his counsel to file an appeal. Neither can it be determined from

the record whether Slate was informed by his counsel that he

could file a pro se notice of appeal within ten days of the

court’s judgment. See Childs v. Collins,

(5th

Cir. 1993). Finally, the record does not demonstrate

conclusively that Slate waived his right to appeal. See Chapman

v. United States,

(5th Cir. 1972).

Because the record presented does not conclusively establish

that Slate is not entitled to relief, the district court erred in

failing to conduct an evidentiary hearing. United States v.

Bartholomew,

(5th Cir. 1992). COA is therefore

GRANTED with respect to Slate’s ineffective-assistance-of-counsel

claim, and the judgment of the district court is VACATED, and the

case is REMANDED to the district court for further proceedings

consistent with this opinion. See Dickenson v. Wainwright,

(5th Cir. 1980). Slate’s IFP motion is GRANTED.

COA GRANTED AS TO INEFFECTIVE-ASSISTANCE-OF-COUNSEL CLAIM;

IFP GRANTED; VACATED AND REMANDED.