William Niswanger v. William Stephens, Director, No. 13-50303 (5th Cir. 2013)

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Case: 13-50303 Document: 00512381339 Page: 1 Date Filed: 09/20/2013 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 13-50303 September 20, 2013 Lyle W. Cayce Clerk WILLIAM LEE NISWANGER, Petitioner-Appellant v. WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent-Appellee Appeal from the United States District Court for the Western District of Texas USDC No. 6:11-CV-97 Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges. PER CURIAM:* William Lee Niswanger, Texas prisoner # 1562564, moves for a certificate of appealability (COA) to appeal from the dismissal of his 28 U.S.C. § 2254 petition challenging his conviction under Texas law for impersonating a public servant. He argues that the district court erred by dismissing on the merits his claims that the ineffectiveness of his trial counsel in several respects caused him to plead guilty. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Case: 13-50303 Document: 00512381339 Page: 2 Date Filed: 09/20/2013 No. 13-50303 The district court did not consider whether the performance of Niswanger s counsel fell below an objective standard of reasonableness nor whether the the outcome of the plea process would have been different with competent advice. Lafler v. Cooper, 132. S. Ct. 1376, 1384 (2012) (internal quotation marks and citations omitted). Consequently, Niswanger has shown that reasonable jurists would find the district court s assessment of the constitutional claims debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000). We therefore GRANT both the motion for a COA and the motion for leave to proceed in forma pauperis, DENY the motion for appointment of counsel as unnecessary, VACATE the district court s judgment, and REMAND to the district court for further proceedings. See Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998); FED. R. APP. P. 24. 2

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