     Case: 17-30503   Document: 00515242647        Page: 1   Date Filed: 12/18/2019




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


                                    No. 17-30503
                                                                        FILED
                                                                December 18, 2019
                                                                   Lyle W. Cayce
UNITED STATES OF AMERICA,                                               Clerk

             Plaintiff - Appellee

v.

JOHNNY SMITH,

             Defendant - Appellant




                Appeal from the United States District Court
                   for the Eastern District of Louisiana


Before STEWART, CLEMENT, and HO, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
                               BACKGROUND
      Defendant Johnny Smith pleaded guilty to producing and possessing
child pornography. As part of a plea agreement, he waived many of his rights
to a direct appeal and collateral challenges under 28 U.S.C. § 2255. He
maintained his right to bring a collateral challenge if ineffective assistance of
counsel undermined the validity of the plea or waiver themselves.
      Smith later filed a § 2255 motion raising various claims of ineffective
assistance of counsel and other constitutional claims. In responding to Smith’s
motion, the government made a deliberate choice not to enforce the collateral-
challenge waiver. The district court nonetheless enforced the waiver sua
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                                   No. 17-30503
sponte. In its order, the district court found that Smith “waived his right to
contest his conviction or sentence in any collateral proceeding, including under
28 U.S.C. § 2255, except if he established that ineffective assistance of counsel
directly affected the validity of his waiver of appeal and collateral challenge
rights or the validity of the guilty plea itself.” The court concluded that
ineffective assistance of counsel did not undermine the voluntariness of
Smith’s plea or waiver and, therefore, that the waiver barred consideration of
Smith’s remaining substantive claims. The court then denied Smith a
certificate of appealability (“COA”).
      Acting pro se, Smith timely requested a COA from this court, which we
also construed as a notice of appeal. A judge of this court granted Smith a COA
on “whether the Government’s answer invoked Smith’s waiver and whether
the district court erred by enforcing it to bar Smith from presenting his
constitutional claims,” and “whether the language of the waiver contained a
waiver of a collateral challenge to his conviction and whether counsel and the
district court erred by incorrectly explaining the substance of the plea
agreement.” The judge directed the government “to address these issues and
all other constitutional issues raised in Smith’s COA motion,” and appointed
counsel to argue Smith’s appeal.
                                   ANALYSIS
      At the outset, the government argues that we should not reach the merits
of Smith’s procedural or substantive claims because of defects in the certificate
of appealability. COAs are governed by 28 U.S.C. § 2253(c):
         (1)   Unless a circuit justice or judge issues a certificate of
               appealability, an appeal may not be taken to the court
               of appeals from . . . the final order in a proceeding
               under section 2255.




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                                  No. 17-30503
         (2)    A certificate of appealability may issue under
                paragraph (1) only if the applicant has made a
                substantial showing of the denial of a constitutional
                right.
         (3)    The certificate of appealability under paragraph (1)
                shall indicate which specific issue or issues satisfy the
                showing required by paragraph (2).
      The government finds two flaws in the COA here. Though the
government concedes that the district court erred in enforcing Smith’s
collateral-review waiver sua sponte, it nonetheless insists that no COA should
have issued because Smith did not raise that error in his COA motion. Since
Smith did not raise the issue, the government argues, “the applicant” has not
“made a substantial showing of the denial of a constitutional right.” Id.
§ 2253(c)(2) (emphasis added). The government next argues that it was error
to issue a COA directing the government to address all the constitutional
issues in Smith’s motion without “indicating which specific issue or issues
satisfy the showing required by [§ 2253(c)(2)].” Id. § 2253(c)(3). We first address
§ 2253(c)(3).
      We agree that a COA that fails to “indicate which specific issue or issues
satisfy the showing required” violates the clear command of § 2253(c)(3).
Issuing a COA instructing the government “to address . . . all other
constitutional issues raised in Smith’s COA motion” was a legal error. But this
does not end our analysis. While the existence of a COA is a “jurisdictional
prerequisite” to an appeal, Miller-El v. Cockrell, 537 U.S. 322, 336 (2003), the
content of the COA required by § 2253(c)(3) “is a mandatory but
nonjurisdictional rule,” Gonzalez v. Thaler, 565 U.S. 134, 154 (2012). We can
correct this nonjurisdictional defect “by considering an amendment to the
COA.” Id. at 146.



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                                   No. 17-30503
      Before we can amend the COA to include a particular claim, we must
verify whether Smith “has made a substantial showing of the denial of a
constitutional right.” § 2253(c)(2). For the constitutional claims that the
district court rejected on the merits, Smith “must demonstrate 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). But “[w]hen
the district court denies a habeas petition on procedural grounds without
reaching the prisoner’s underlying constitutional claim, a COA should issue
when the prisoner shows, at least, that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right
and that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Id. We have discretion to “proceed[ ] first
to resolve the issue whose answer is more apparent from the record and
arguments.” Id. at 485.
      It is apparent from this record that Smith has not made a substantial
showing on the merits of any constitutional claim. Each claim contradicts the
sworn testimony he gave during the plea colloquy at his re-arraignment. He
testified, among other things, that (1) he was satisfied with the performance of
his attorney, (2) he had not been pressured into pleading guilty and was doing
so of his own free will, (3) he was waiving his right to proceed by grand jury
indictment, (4) he understood the elements of the crimes he was charged with,
including the definition of child pornography and the interstate commerce
element, (5) these elements were supported by a factual basis, and (6) he was
actually guilty of these crimes.
      This court “generally will not allow a defendant to contradict his
testimony given under oath at a plea hearing.” United States v. McDaniels, 907
F.3d 366, 371 (5th Cir. 2018). “[T]here must be independent indicia of the likely


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                                         No. 17-30503
merit of the petitioner’s contentions, and mere contradiction of his statements
at the guilty plea hearing will not carry his burden.” United States v. Raetzsch,
781 F.2d 1149, 1151 (5th Cir. 1986). This requires “specific factual allegations,”
typically “supported by the affidavit of a reliable third person.” United States
v. Fuller, 769 F.2d 1095, 1099 (5th Cir. 1985). Here, Smith offers nothing but
his own, largely conclusory statements to contradict his prior sworn testimony.
Thus, he has failed to make a substantial showing on any constitutional claim.
       First, Smith alleges that his attorney coerced him to plead guilty. His
§ 2255 motion included this supporting statement:
       Very early in the Movant’s Criminal case, [Movant’s attorney]
       began coercing the Movant to plead guilty by threat and duress of
       two things: A) That the Movant would receive life in prison for
       going to trial, thus guaranteeing a loss at trial, and B) That all of
       Movant’s family members would be indicted as punishment for his
       demanding trial.”
       As the trial court explained, this accusation contains no supporting
details about how or when this coercion happened. Even if “the affidavit of a
reliable third person,” is not required, “specific factual allegations” supported
by more than “mere contradiction of his [earlier] statements” certainly are.
Raetzsch, 781 F.2d at 1151; accord United States v. Reed, 719 F.3d 369, 373
(5th Cir. 2013). No reasonable jurist would find that the district court erred in
rejecting this claim. 1
       Second, Smith argues that counsel’s performance was deficient because
she did not test the government’s proof on the jurisdictional element of his



       1  Smith proffered a few additional details in his COA motion. We do not consider them
because he never presented them to the district court. Theriot v. Parish of Jefferson, 185 F.3d
477, 491 n.26 (5th Cir. 1999) (“An appellate court may not consider new evidence furnished
for the first time on appeal . . . .”). In any event, these details would not change our conclusion
that Smith failed to make a substantial showing on this claim.


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                                 No. 17-30503
charge for producing child pornography—that the “visual depiction was
produced or transmitted using materials that have been mailed, shipped, or
transported in or affecting interstate or foreign commerce.” See 18 U.S.C.
§ 2251(a). In the factual basis for his guilty plea, though, Smith admitted that
he “used a hand-held digital recording device that was manufactured outside
of the State of Louisiana to record the sexually explicit conduct.” Again, Smith
provides nothing but contrary assertions to rebut his earlier sworn testimony,
and thus fails to make a substantial showing on this claim.
      Third, Smith argues that the district court lacked jurisdiction to accept
his plea because he was never indicted by a grand jury. Though he signed a
waiver of his right to grand jury indictment prior to his initial arraignment, he
argues that the waiver was ineffective because it was not made in open court
and because he was incompetent at the time. See Fed. R. Crim. P. 7(b) (“An
offense punishable by imprisonment for more than one year may be prosecuted
by information if the defendant—in open court and after being advised of the
charge and of the defendant’s rights—waives prosecution by indictment.”);
United States v. Moore, 37 F.3d 169, 173 (5th Cir. 1994) (waiver must be
knowingly, understandingly, and voluntarily made). But Smith is wrong—the
failure to secure an indictment is a nonjurisdictional error that he waived when
he pleaded guilty. United States v. Daughenbaugh, 549 F.3d 1010, 1012–13
(5th Cir. 2008).
      In any event, Smith fails to make a substantial showing on the merits of
this claim. Even assuming his initial waiver was defective, he has never
contested the validity of his subsequent waiver in open court during his re-
arraignment. And our review of the re-arraignment transcript shows that
Smith would have no basis for contesting it. Before accepting Smith’s guilty
plea, the district court asked, “I understand that you have waived your right


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                                 No. 17-30503
to a grand jury indictment. Is that correct?” Smith responded, “That is correct.”
His attorney then confirmed, “That is correct, Your Honor. There is a waiver
of indictment in the record.” The court then went on to confirm that Smith was
not currently under the care of a psychiatrist and made a finding of fact that
Smith was competent. The court confirmed with Smith that he had received a
copy of the bill of information, had reviewed it with his lawyer, and understood
the nature of the charges he was pleading to and the maximum penalties they
carried. Then, when reviewing the terms of Smith’s plea agreement, the court
again asked, “Mr. Smith, do you understand that under this plea agreement,
you have agreed to waive indictment and to plead guilty to Counts 1 and 2 of
the superseding bill of information . . . ?” Smith responded, “Yes.” For multiple
reasons, then, we will not amend the COA to include this claim.
      Smith raises a litany of other ineffective-assistance claims, none of which
meets the standard to issue a COA:
• Counsel allowed Smith to plead guilty while he was incompetent.
      o The district court found that Smith was competent before it accepted
         his guilty plea during re-arraignment, and Smith provides no
         evidence to rebut that finding.
• Counsel failed to move to suppress evidence from the warrantless retrieval
   of files from Smith’s computer through peer-to-peer file-sharing software.
      o Binding precedent from this court establishes that a person who
         voluntarily makes files available to the public by sharing them on a
         peer-to-peer network has no legitimate expectation of privacy in those
         files. See United States v. Weast, 811 F.3d 743, 746 (5th Cir. 2016).
• Counsel failed to challenge the validity of the search warrant.
      o Smith provides no argument, evidence, or authority to explain why
         the search warrant would have been invalid.


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                                 No. 17-30503
• Counsel failed to properly explain his plea agreement and the consequences
  of pleading guilty.
     o Smith expressly concedes in his brief he “certainly does not suggest
        that this particular error was enough in itself to justify the writ [of
        habeas corpus].” In any event, Smith fails to provide any independent
        indicia of merit to overcome his sworn testimony that he had reviewed
        the plea agreement with his attorney and understood it.
• Counsel failed to move to suppress Smith’s statements given during the
  search.
     o Smith never alleges that the police failed to inform him of his
        Miranda rights. He provides no argument, evidence, or authority to
        explain why his statements should have been suppressed.
• Counsel failed to bargain for a better plea agreement.
     o Smith provides no argument, evidence, or authority to support this
        claim of ineffective assistance.
• Counsel acceded to Smith’s demand to speak with prosecutors.
     o Smith provides no argument, evidence, or authority to support this
        claim of ineffective assistance.
                                 *     *        *
     Having concluded that jurists of reason would not find the merits of
Smith’s constitutional claims debatable, we need not address the district
court’s procedural error. See Slack, 529 U.S. at 484. We therefore VACATE the
certificate of appealability and DISMISS this appeal.




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