     Case: 17-10706      Document: 00515055679         Page: 1    Date Filed: 07/30/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit


                                    No. 17-10706                              FILED
                                  Summary Calendar                        July 30, 2019
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MICHAEL DAVID GOODWIN,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 2:14-CV-91
                             USDC No. 2:12-CR-37-1


Before BENAVIDES, OWEN, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Former federal prisoner Michael David Goodwin filed a 28 U.S.C. § 2255
motion challenging his guilty-plea conviction for aiding and abetting health
care fraud, alleging numerous grounds of ineffective assistance of counsel.
After the district court denied his motion, this court granted him a certificate
of appealability on the issue whether lead counsel, Clark Holesinger, rendered



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                    No. 17-10706

ineffective assistance by failing to appear at Goodwin’s rearraignment, sending
local counsel, William Kelly, in his stead.
      Following the denial of § 2255 relief, this court reviews the district
court’s legal conclusions de novo and its factual findings for clear error. United
States v. Cavitt, 550 F.3d 430, 435 (5th Cir. 2008). Ineffective assistance of
counsel claims are mixed questions of law and fact, reviewed de novo. United
States v. Culverhouse, 507 F.3d 888, 892 (5th Cir. 2007). Factual findings,
including credibility determinations, are not clearly erroneous so long as the
findings are plausible in light of the record as a whole. United States v. Montes,
602 F.3d 381, 384 (5th Cir. 2010).
      As he did below, Goodwin argues that he was wholly without counsel at
rearraignment because Holesinger was his attorney, and he renews his
assertion that Kelly’s physical presence at rearraignment was insufficient
because Kelly did not represent him but instead represented only his wife,
Patricia Goodwin. He urges that Holesinger’s failure to appear at that critical
stage violated his Sixth Amendment rights, that United States v. Cronic,
466 U.S. 648 (1984), rather than Strickland v. Washington, 466 U.S. 668
(1984), therefore applies such that prejudice is presumed, and that reversal is
thus appropriate.
      Goodwin’s     argument   is    that    Holesinger’s    absence   and   Kelly’s
substitution amounted to a constructive denial of counsel. The “constructive
denial of counsel occurs, however, in only a very narrow spectrum of cases
where the circumstances leading to counsel’s ineffectiveness are so egregious
that the defendant was in effect denied any meaningful assistance at all.”
Craker v. McCotter, 805 F.2d 538, 542 (5th Cir. 1986) (citations, internal
quotation marks and emphasis omitted). Goodwin bears the burden of proving




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                                   No. 17-10706

a constructive denial of counsel. Childress v. Johnson, 103 F.3d 1221, 1228-29
(5th Cir. 1997).
      Here, the district court found Goodwin’s assertion that Kelly was not his
attorney to be incredible, instead finding that Kelly acted as local counsel and
specifically crediting (1) Kelly’s evidentiary hearing testimony explaining their
attorney-client relationship, (2) Goodwin’s sworn rearraignment testimony
acknowledging Kelly’s representation and expressing satisfaction with it, and
(3) Goodwin’s testimony at the Garcia 1 hearing requesting that Kelly and
Holesinger jointly represent him and his wife. Goodwin makes no argument
addressing these findings, much less demonstrating them to be clearly
erroneous. See United States v. Scroggins, 599 F.3d 433, 446 (5th Cir. 2010)
(stating that a party who fails to adequately brief an appellate issue waives it).
Moreover, any such argument would be meritless. The court’s findings are
supported by the record and are further corroborated by Kelly’s attendance at
Goodwin’s arraignment, Kelly’s filing joint pre-trial pleadings on Goodwin’s
behalf, and Patricia Goodwin’s evidentiary hearing testimony specifically
admitting that Kelly represented both her and her husband. See Montes, 602
F.3d at 384.
      Additionally, the credited evidentiary hearing and rearraignment
testimony shows that Goodwin reviewed the charges, the plea agreement, and
the factual basis with Kelly prior to pleading guilty, that Kelly was present to
address any of Goodwin’s questions or concerns, and that Goodwin raised none.
Kelly thus provided “some meaningful assistance” to Goodwin. See Craker,
805 F.2d at 542-43. Consequently, Goodwin fails to show that the district court




      1 United States v. Garcia, 517 F.2d 272, 278 (5th Cir. 1975), abrogated on other
grounds by Flanagan v. United States, 465 U.S. 259, 263 & n.2 (1984).


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                                 No. 17-10706

erred in declining to apply the Cronic presumption of prejudice. See Childress,
103 F.3d at 1229, 1231-32.
      The two-pronged Strickland analysis therefore applies to Goodwin’s
claim that Holesinger was ineffective in failing to attend rearraignment.
However, as the Government points out, by failing to brief any argument that
he was prejudiced by Holesinger’s absence, his ineffective assistance claim
therefore fails and is abandoned.     See Strickland, 466 U.S. at 694, 697;
Scroggins, 599 F.3d at 446; Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993); FED. R. APP. P. 28(a)(8). Further, even had Goodwin briefed it, any
argument that he was prejudiced by Holesinger’s failure to attend
rearraignment would fail. The record does not support the conclusion that, but
for Holesinger’s absence, Goodwin would not have pleaded guilty. To the
contrary, as the district court determined, the record establishes that
Goodwin’s primary goal was to have the charges against his wife dismissed,
and his plea achieved that goal. That being so, he cannot demonstrate that,
but for lead counsel’s absence from rearraignment, he would not have pleaded
guilty but would have insisted on going to trial. See United States v. Kinsey,
917 F.2d 181, 183 (5th Cir. 1990); see also Strickland, 466 U.S. at 694, 697.
      The district court’s judgment is AFFIRMED.




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