     Case: 12-51238       Document: 00512563000         Page: 1     Date Filed: 03/17/2014




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

                                                                            FILED
                                       No. 12-51238                       March 17, 2014

                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

CHARLES EDWARD JOHNSON,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 6:10-CV-81
                             USDC No. 6:07-CR-97-1


Before HIGGINBOTHAM, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:*
       Charles Edward Johnson, federal prisoner # 83808-180, was convicted by
a jury of possession, with intent to distribute, of at least five grams of a mixture
or substance containing cocaine base within 1000 feet of a public elementary
school. He was sentenced to a 365-month term of imprisonment. Johnson,
represented by counsel, requests a certificate of appealability (COA) to appeal
the district court’s denial on the merits of his 28 U.S.C. § 2255 motion, alleging
claims of ineffective assistance of trial and appellate counsel.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-51238

       We previously denied Johnson’s motion, based in part on a finding that he
had abandoned certain claims by failing to brief them adequately in his motion.
Johnson filed a motion for reconsideration, arguing that this court erred by
applying the standards applicable to a formal appellate brief to his COA
application. We granted the motion for reconsideration and withdrew our order,
and we now substitute the following opinion.
       A COA may be issued only if the movant “has made a substantial showing
of the denial of a constitutional right.”          28 U.S.C. § 2253(c)(2); see Slack
v. McDaniel, 529 U.S. 473, 484 (2000). When the district court has denied a
§ 2255 claim on the merits, as in this case, the movant “must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.” Slack, 529 U.S. at 484. A movant satisfies the COA
standard by showing that “jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell,
537 U.S. 322, 327 (2003). To establish a claim of ineffective assistance of
counsel, Johnson must show that “counsel’s representation fell below an
objective standard of reasonableness,” and that this deficient performance was
prejudicial to his defense. Strickland v. Washington, 466 U.S. 668, 688, 691-92
(1984).
       Johnson seeks a COA on the following claims: (1) trial counsel was
ineffective in failing to move to suppress evidence discovered in a search of
Johnson’s home on the ground that the search warrant affidavit contained
material falsehoods;1 (2) trial and appellate counsel were ineffective in failing to
object to the testimony of a chemist who established the identity of the drugs
found at Johnson’s home, on the ground that this testimony violated the


       1
          Johnson also argues, with no further elaboration, that “[a]ppellate counsel was
ineffective for his failure to appeal this issue.” He does not explain how appellate counsel
could have appealed the district court’s failure to exclude evidence when no suppression
motion was filed by trial counsel.

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                                       No. 12-51238

Confrontation Clause because a different chemist had performed the actual
laboratory analysis; (3) trial and appellate counsel were ineffective in failing to
argue that “the District Court failed to make individualized findings as to
‘foreseeability’ regarding drug quantity” at sentencing; (4) trial and appellate
counsel were ineffective in failing to “properly” argue that Johnson should not
receive a “leadership” enhancement under the Sentencing Guidelines; (5) trial
counsel was ineffective in failing to investigate the possibility that the witnesses
against Johnson were granted leniency by the government in exchange for their
testimony; and (6) trial counsel was ineffective in failing to object to the
introduction into evidence of an aerial photograph used to prove that Johnson
distributed drugs within 1000 feet of a school, on the grounds that it was
insufficient to prove the distance and that it “had Confrontation Clause
implications.”2
       As to claim (1), Johnson seemingly focuses on the following statement in
the search warrant affidavit:
       On the 5th day of June 2007, and before the making of this
       Affidavit, Affiant received information from individual’s whom
       Affiant knows their information to be reliable, credible and
       trustworthy because the individuals (hereinafter called informant
       #1, informant #2 and informant #3) have provided information to
       Affiant and to other officers of the Waco Police Department in the
       past and on each and every occasion the informants’ information has
       proven to be true and correct. Informant’s information was
       corroborated through interviews with other officers and independent
       investigation.



       2
         Although Johnson repeatedly attempts to incorporate by reference arguments made
in briefing before the district court, this is not permitted in a COA application. See McGowen
v. Thaler, 675 F.3d 482, 497 (5th Cir. 2012) (“We have held that a COA applicant waives
claims by directing the appellate court to briefing before the district court to support his
request for a COA.”); Summers v. Dretke, 431 F.3d 861, 870 (5th Cir. 2005) (“Summers
maintains that [certain] claims raised before the district court cannot be briefed because of
page limitations. Rather, Summers directs this court to the briefing before the district court
for support of his request for a COA as to these claims. We decline this request. By failing
to adequately brief these issues, Summers has waived them.”)

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Johnson argues that “it simply defies logic that the Affiant could have received
the full panoply of information described in the Affidavit for Search Warrant .
. . and conducted such ‘independent investigation’ all on the same day.”
However, the affiant goes on to describe, at some length, using the three
informants “[d]uring the past 4 months” to gather information on Johnson’s drug
operation and personally performing surveillance on Johnson’s home “on a daily
basis.” It is inescapably clear that the affiant is not claiming to have learned all
the information contained in the affidavit in a single day.
       As to claim (2), Johnson implies that the Supreme Court’s decision in
Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), bars a supervisory chemist
from testifying at trial about laboratory tests performed by a different chemist.
First, the mandate in Johnson’s direct appeal issued on January 21, 2009, five
months before Melendez-Diaz was decided. “[C]ounsel is normally not expected
to foresee future new developments in the law.” Nelson v. Estelle, 642 F.2d 903,
908 (5th Cir. Unit A 1981). Second, Melendez-Diaz held only that affidavits of
analytical chemists admitted at trial in lieu of live testimony violated the
Confrontation Clause, and did not consider whether one analyst could testify in
court as to the significance of data developed by a different analyst.                        In
Bullcoming v. New Mexico, 131 S. Ct. 2705, 2709-10 (2011), the Supreme Court
held that the testimony at trial of an analyst who “had neither participated in
nor observed the test on [the petitioner’s] blood sample” violated the
Confrontation Clause. However, even after Bullcoming, it is not clear whether
the testimony of the analyst in this case – who supervised and worked in the
same lab as the analyst who did the actual testing – would violate the
Confrontation Clause.3 Johnson has not made a substantial showing that his

       3
         Justice Sotomayor, one of the five justices in the Bullcoming majority, explained in
a concurrence that “this is not a case in which the person testifying is a supervisor, reviewer,
or someone else with a personal, albeit limited, connection to the scientific test at issue.” 131
S. Ct. at 2722 (Sotomayor, J., concurring). She opined that “[i]t would be a different case if,
for example, a supervisor who observed an analyst conducting a test testified about the results

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                                       No. 12-51238

counsel was constitutionally deficient in failing to object to the analyst’s
testimony on Confrontation Clause grounds.
       As to claim (3), Johnson fails to recognize that “reasonable foreseeability”
is required only when holding a defendant accountable for “acts and omissions
of others in furtherance of [a] jointly undertaken criminal activity.” U.S.S.G.
§ 1B1.3(a)(1)(B) (emphasis added). Johnson was not charged with conspiracy,
and he was found to be personally responsible for all drug amounts attributed
to him. As to claim (4), Johnson does not demonstrate what a “proper” argument
would look like or explain how it would have been successful. As to claim (5), the
district court noted that Johnson “provides no evidence whatsoever to
substantiate” his accusations, and Johnson’s COA application likewise identifies
no such evidence.
       As to claim (6), the district court explained that the photograph at issue
was a “scale” photograph developed and used by the City of Waco Planning
Department for zoning and planning purposes, and that the photograph was
introduced through the testimony of a department official. Using the scale, the
witness testified that Johnson’s residence was approximately 325 feet from an
elementary school, well within the 1000-foot requirement. Johnson does not
challenge the district court’s analysis or otherwise explain why this evidence was
insufficient to prove the distance element of his offense.             Moreover, the
introduction of a photograph used in city planning does not violate the
Confrontation Clause because its “primary purpose” is clearly not “to establish
or prove past events potentially relevant to later criminal prosecution.” Davis
v. Washington, 547 U.S. 813, 822 (2006).
       Johnson’s motion for a COA is DENIED.




or a report about such results.” Id.

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