           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                                                                 F I L E D
                                       No. 06-40221                               October 2, 2007

                                                                              Charles R. Fulbruge III
UNITED STATES OF AMERICA                                                              Clerk


                                                  Plaintiff-Appellee
v.

JEFFREY ALLEN

                                                  Defendant-Appellant



               Appeal from the United States District Court for the
                   Eastern District of Texas, Lufkin Division
                              USDC No. 9:04-CR-6
                             USDC No. 9:04-CV-274


Before JONES, Chief Judge, and STEWART and CLEMENT, Circuit Judges.
PER CURIAM:*
       Jeffrey Allen appeals the district court’s dismissal of his motion to vacate,
set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. We AFFIRM.
                          I. FACTS AND PROCEEDINGS
       On April 19, 2004, Allen pleaded guilty to one count of violating 18 U.S.C.
§ 2252A(a)(2)(A) for the receipt and distribution of child pornography. He was
sentenced to sixty-three months of imprisonment.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-40221

      On December 10, 2003, Allen’s adult stepdaughter, Stephanie Best,
contacted the Federal Bureau of Investigation (“FBI”) in Lufkin, Texas and
related that her mother and stepbrother believed that there were images of child
pornography on their home computer. FBI personnel told her that if her mother
had equal access to the computer and believed that it contained images of child
pornography, then her mother could bring the computer to the FBI office and
sign a consent-to-search form.
      On December 29, 2003, Allen’s wife, Yvonne Allen, brought the computer
to the Lufkin FBI office and was interviewed by Special Agent Goodson. Yvonne
Allen had been told by her twenty-one-year-old stepson, Damon Allen, that his
father, Jeffrey Allen, had accessed Web sites and downloaded child pornography.
She stated that on several occasions, Damon Allen had accessed the computer
after Jeffrey Allen, viewed Web sites that his father had visited, and showed
them to her. Yvonne Allen stated that she had seen at least two pictures of
naked eight- or nine-year-old girls, and that Damon told her about other child
pornography he had seen on the computer. Yvonne Allen told Goodson that she
had always had full access to the computer and usually played solitaire on it.
She signed a consent form authorizing the FBI to search the computer.
      On December 30, 2003, Damon Allen was interviewed and said that he had
seen video clips on the computer that he believed to be child pornography. He
described how to access those video clips on the computer, but did not mention
the existence of any password-protection.      Damon Allen’s only mention of
passwords during the interview were those used by his father to access an online
service, not files on the computer’s hard-drive.
      In a report dated January 17, 2004, computer forensic examiner Donald
Wills of the North Texas Regional Computer Forensic Laboratory described his
examination of Allen’s computer. Besides indicating that there was possible
child pornography on the computer, Wills’ report stated that the computer’s


                                       2
                                   No. 06-40221

Windows software was registered to “Jeff,” the e-mail account associated with
the computer’s Internet service provider was “jallen954,” a newsgroup account
was in the name of “jallen9543@directway.com,” and the computer held a folder
entitled “jallen9543.” Wills extracted selected files from the computer. The
report does not indicate that any files were password-protected nor that the
examiner used software to decrypt or bypass password-protection.
        At the time of his arrest on February 9, 2004, Allen said that he knew he
was being arrested because he had inappropriate material on his computer. He
stated that the images of child pornography on his computer had been
downloaded without his knowledge and without the knowledge of anyone in his
household. He said that many things had appeared on his computer without his
knowledge over the years and argued that someone else could have downloaded
the images on his computer while it was on.
        After sentencing, Allen filed a notice of appeal on September 24, 2004, but
it was dismissed for being filed out of time. On December 20, 2004, Allen filed
a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. §
2255.
        During those proceedings, Allen’s trial counsel, Gregory Waldron, provided
an affidavit to the district court. Waldron’s affidavit reiterated the information
that Yvonne and Damon Allen provided to the FBI and indicated that Waldron
reviewed their statements and all discovery with Allen. Allen did not object to
the statements of his wife and son. Based upon those statements, Waldron
concluded that Yvonne Allen had authority to give consent to search the
computer.
        Allen now appeals the dismissal of his motion to vacate his conviction on
two grounds. He claims that the search of his computer was unlawful and that
his claim on this point was not waived by his guilty plea. He also claims that he



                                         3
                                  No. 06-40221

received ineffective assistance of counsel when Waldron did not file a motion to
suppress the evidence seized during the search of the computer.
                         II. STANDARD OF REVIEW
      In reviewing the denial of a motion under 28 U.S.C. § 2255, this Court
reviews factual findings for clear error and conclusions of law de novo. United
States v. Faubion, 19 F.3d 226, 228 (5th Cir. 1994).         Because ineffective
assistance of counsel claims are mixed questions of law and fact, they are subject
to de novo review. Id.
                              III. DISCUSSION
A.    Lawfulness of the Computer Search
      “A plea of guilty admits all the elements of a formal criminal charge and
waives all non-jurisdictional defects in the proceedings leading to conviction.
The plea waives claims of governmental misconduct during the investigation and
improper motives for prosecution.” United States v. Cothran, 302 F.3d 279,
285–86 (5th Cir. 2002) (internal quotations omitted). Allen pleaded guilty on
April 19, 2004. He makes no argument and cites no authority to suggest that he
did not waive his right to challenge the search of his computer when he pleaded
guilty. The district court did not err in dismissing this claim.
B.    Ineffective Assistance of Counsel
      To evaluate an ineffective assistance of counsel claim, this Court first
determines whether the counsel’s performance was deficient. Turner v.
Quarterman, 481 F.3d 292, 298 (5th Cir. 2007). “This requires [the defendant
to show] that counsel made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. (quoting
Strickland v. Washington, 466 U.S. 668, 687 (1984)). “The proper measure of
attorney performance remains simply reasonableness under prevailing
professional norms.” Strickland, 466 U.S. at 688. Second, this Court determines
whether the deficient performance prejudiced the defense. Turner, 481 F.3d at

                                        4
                                  No. 06-40221

298. “This requires [the defendant to show] that counsel’s errors were so serious
as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id.
(quoting Strickland, 466 U.S. at 687). To demonstrate prejudice in the context
of a guilty plea, “the defendant must show that there is a reasonable probability
that, but for counsel’s errors, he would not have pleaded guilty and would have
insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
      Allen claims Yvonne Allen lacked authority to consent to the search,
particularly to consent to the search of password-protected files on the computer.
Allen argues that Waldron’s failure to move to suppress the evidence seized
during the search of the computer constituted deficient performance that
prejudiced his decision to plead guilty.      To determine whether Waldron’s
performance was deficient, we must determine whether his decision not to move
to suppress the evidence was reasonable.
      To justify a warrantless search based on consent received from a third
party, the Government must prove that the third party had either actual or
apparent authority to consent. United States v. Gonzales, 121 F.3d 928, 938 (5th
Cir. 1997). “To establish that a third party had actual authority to consent, the
government must demonstrate mutual use of the property by persons generally
having joint access or control for most purposes.” Id. (internal quotations
omitted). To establish whether a third party had apparent authority to consent,
the Government “need demonstrate only that the officers reasonably believed
that the third party was authorized to consent.” Id.
      The first question Waldron faced was whether the law regarding consent
searches of other containers applied to consent searches of computers. Although
this Court has not addressed the issue, other courts had by December 2003. In
Trulock v. Freeh, the Fourth Circuit applied the law of consent searches to a
personal computer used by two people living together. 275 F.3d 391, 402–03 (4th
Cir. 2001). In that case, the court held that the third party did not have

                                        5
                                  No. 06-40221

authority to consent to a search of password-protected files on the computer
because they were “analogous to [a] locked footlocker inside [a] bedroom.” Id. at
403. In United States v. Smith, a district court denied a motion to suppress
evidence seized during the consent search of a computer based on the apparent
authority of the defendant’s live-in girlfriend. 27 F.Supp.2d 1111, 1116 (C.D. Ill.
1998).
      Although unpublished decisions are of limited persuasive authority, they
would have helped Waldron determine the applicability of consent search law to
a computer. In an unpublished decision, the Fourth Circuit upheld the search
of a computer disk turned over to police by the defendant’s wife based on her
common authority over the property. United States v. Mannion, 54 Fed.Appx.
372, 373–74 (4th Cir. 2002). Also in an unpublished decision, the Sixth Circuit
upheld the consent search of a computer based upon the apparent authority of
a third party, because the defendant “never told [the third party] she could not
use the new computer nor restricted her access with password protections.”
United States v. Aaron, 33 Fed.Appx. 180, 184 (6th Cir. 2002). Most importantly,
no circuit has held that different principles apply to searches of computers than
those that apply to the searches of other containers.
      While applying this law to the facts of the case before him, Waldron had
read Yvonne and Damon Allen’s statements to Special Agent Goodson.
According to Goodson’s report, Yvonne Allen told him that she had equal access
to the computer and “usually play[ed] solitaire on it.”         From Waldron’s
perspective, he had no reason to believe that Yvonne Allen’s access to the
computer was exclusively limited to playing solitaire. Also, Yvonne Allen
brought the computer to the FBI office and turned it over to Goodson. Damon
Allen’s easy access to what he believed to be child pornography suggested that
all family members had full access to the computer. Nothing suggested to



                                        6
                                 No. 06-40221

Waldron that agents were unreasonable in their belief that Yvonne Allen had
authority to consent to a search of the computer.
      Allen relies on Trulock to suggest that Waldron should have challenged
the search of password-protected files on the computer to which only Allen had
access. If there were any evidence in the record that the files were protected by
a password, Allen’s claim might have merit. But to the contrary, the record
shows that no password-protection existed for files on the hard drive of the
computer. Allen’s son accessed what he believed to be child pornography on the
computer. He even gave directions on how to open those files, and did not
indicate that any password was necessary to open them.           The computer
examination report did not mention passwords nor did it mention any software
used to break or circumvent passwords. Most of all, Allen’s statement to
arresting agents that any child pornography on the computer must have been
downloaded by someone else suggests that no password-protection existed.
      Assuming for the purpose of argument that the files were locked and only
Allen had access to them, Waldron’s decision was still reasonable. Waldron
reviewed the FBI interview reports of Allen’s wife and son with Allen, including
his son’s assertion that he had accessed files on the computer that he believed
to contain child pornography without mentioning a password, even though he
described passwords that Allen used to access online services. Yet, Allen never
told Waldron that his son’s statements were false—that those files were
protected by a password that only he knew. In Strickland v. Washington, the
Supreme Court wrote:
            The reasonableness of counsel’s actions may be determined or
      substantially influenced by the defendant’s own statements or
      actions. Counsel’s actions are usually based, quite properly, on
      informed strategic choices made by the defendant and on
      information supplied by the defendant. In particular, what
      investigation decisions are reasonable depend critically on such
      information.

                                       7
                                     No. 06-40221

466 U.S. 688, 691 (1984). Waldron had no indication that any computer files
were protected by a password, and Allen had ample opportunity to inform
Waldron if any were. This Court cannot say that Waldron’s decision was
unreasonable when both the law and facts indicated that the motion to suppress
the evidence seized from the computer would have been denied. The district
court did not err in dismissing Allen’s ineffective assistance of counsel claim.1
                                 IV. CONCLUSION
      The judgment of the district court is AFFIRMED.




      1
        Because Allen has failed to show that Waldron’s performance was deficient, we have
no need to explore whether his actions prejudiced Allen.

                                            8
