     Case: 18-20083      Document: 00515544400         Page: 1    Date Filed: 08/28/2020




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

                                                                           FILED
                                      No. 18-20083                     August 28, 2020
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

               Plaintiff - Appellee

v.

SAMEH KHALED DANHACH, also known as Andrew,

               Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:16-CV-3160
                             USDC No. 4:12-CR-161-1


Before STEWART, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Sameh Khaled Danhach is appealing the district
court’s denial of his 28 U.S.C. § 2255 motion for federal habeas relief. The
district court also denied his certificate of appealability (“COA”), and a motions
judge later granted the COA. For the reasons set forth below, we now VACATE
the COA and DISMISS this appeal.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-20083
                                             I.
      Danhach is serving three concurrent sentences totaling 151 months for
his participation in an organized retail theft scheme. We previously affirmed
the six-count conviction and corresponding sentences. See United States v.
Danhach (Danhach I), 815 F.3d 228 (5th Cir. 2016).
      The subject of this appeal concerns defense counsel, Matthew Hennessy,
and a digital video recorder (“DVR”) hard drive that was initially hidden from
law enforcement.1
      Danhach and his co-defendant Allet Alex Kheir (“Kheir”) were being
investigated for exporting and selling stolen over the counter (“OTC”) goods
from their warehouse. Agents surveilled the warehouse and observed OTC
products being unloaded into cars and later transported. On March 1, 2012,
the investigating agents “saw Kheir . . . enter the building; the agents then
approached and knocked on the door in an effort to gain entry.” Danhach I,
815 F.3d at 233. Kheir permitted the agents to conduct a protective sweep of
the warehouse, and during such sweep, the agents saw, in plain view, stolen
OTC goods. The agents then left, obtained a search warrant, and returned to
seize the stolen goods.
      The Hidden Hard Drive.                  Approximately six months after law
enforcement officers executed a warrant that resulted in the seizure of stolen
over the counter (“OTC”) goods from Danhach’s and his co-defendant Allet Alex
Kheir’s Houston warehouse, but before trial, Mr. Hennessy filed an ex parte
sealed document entitled “Defense Counsel’s Notice Regarding Video
Recording.” The Notice—filed “on [the] advice of a leading expert in legal
ethics”—stated that Mr. Hennessy had been made aware of a DVR hard drive
that was not seized during the execution of the search warrant, as it was out


      1   The factual and procedural history is chronicled in Danhach I, 815 F.3d at 232–35.
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                                       No. 18-20083
of sight at the time of the search. The Notice claimed that Mr. Hennessy
learned of the unseized DVR hard drive “several months” after the search and
“had a third party forensics firm recover the hard drive from the warehouse
landlord.”
       When a second firm recovered the data and made forensic copies, Mr.
Hennessy viewed the retrieved data with Kheir’s counsel. The drive contained
nine days of video from the warehouse security cameras. According to Mr.
Hennessy’s notice, this footage included (1) video of the agents conducting a
warrantless search instead of a protective sweep on March 1 (prior to obtaining
a search warrant) and (2) video of conduct the Government would argue is
consistent with the charged conduct. Lastly, Mr. Hennessy noted that, “[f]or
purposes of this pleading, the Court should assume that the hard drive was
not found during the . . . search because of conduct the [G]overnment would
consider obstruction.”
       The Garcia Hearing and Obstruction of Justice Charge.                             The
Government subsequently filed a notice of potential conflict of interest. Its
notice stated that during a proffer session, Kheir admitted that he illegally hid
the DVR on the direction of Danhach. The Government also requested and
received a Garcia hearing2 to inquire about disqualifying Mr. Hennessy as
counsel or waiving the conflict, if any, because Mr. Hennessy could be called to
testify about the hard drive’s chain of custody and the facts surrounding the
data retrieval. Considering the arguments, the court declined to disqualify Mr.
Hennessy as he made clear that he did not participate in the concealment of
the hard drive.


       2 “If a defendant chooses to proceed with representation by counsel who has a conflict
of interest, a district court must conduct what is commonly known as a ‘Garcia hearing’ to
ensure a valid waiver by the defendant of his Sixth Amendment right” to conflict-free counsel.
United States v. Garcia-Jasso, 472 F.3d 239, 243 (5th Cir. 2006) (citing United States v.
Garcia, 517 F.2d 272, 278 (5th Cir. 1975)).
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                                  No. 18-20083
      After this ruling, the Government filed a superseding indictment against
Danhach that included a charge of obstruction of justice based on the facts
surrounding the concealment of the hard drive and Kheir’s proffer.
      Trial and the § 2255 Motion. On several occasions before trial, the
Government urged the court to reconsider its request to disqualify Mr.
Hennessy and even filed a notice of intent to subpoena Mr. Hennessy as a fact
witness. The court denied the reconsideration requests, and the Government
and Mr. Hennessy ultimately stipulated as to the basic facts of the recovery of
the hard drive and its authenticity.
      At the close of trial, Danhach was found guilty on all counts, including
the on the DVR-related obstruction of justice charge, and the district court
imposed three concurrent sentences totaling 151 months.
      Several years into his sentence and after we affirmed his conviction,
Danhach filed a 28 U.S.C. § 2255 motion alleging, inter alia, ineffective
assistance of his trial counsel based on the foregoing alleged conflict of interest
stemming from Mr. Hennessy’s involvement in recovering the DVR hard drive.
The court ordered Mr. Hennessy to file an affidavit addressing Danhach’s
ineffective counsel assertions. In the affidavit, Mr. Hennessy stated that he
believed that he did not have an ethical obligation to withdraw as Danhach’s
counsel as long as Danhach wanted him to serve in that capacity. He also
noted that Danhach insisted that he continue to serve as counsel after
Danhach was charged with obstruction of justice.
      In denying the § 2255 motion, the district court concluded that any
alleged conflict of interest was waived by Danhach at the initial Garcia
hearing, and it also found that assuming the conflict was not waived, Danhach
was not prejudiced. The court did not certify the motion for appeal.
      Danhach subsequently moved for certification, but he claimed, for the
first time, that the district court erred by failing to hold a second Garcia
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                                 No. 18-20083
hearing and disqualify Mr. Hennessy. A motions judge certified the appeal as
to “(1) whether Danhach procedurally defaulted his claim that the district
court erred in failing to hold a second Garcia hearing after the filing of the
superseding indictment, and (2) if Danhach is not barred from bringing this
claim, whether the district court erred in failing to hold a second Garcia
hearing after the filing of the superseding indictment.”
                                      II.
      Danhach argues that the district court erred when it did not hold a
second Garcia hearing. He avers the district court had a duty to revisit the
conflict of interest issue after Danhach was indicted for obstruction of justice
for the concealment of evidence that Mr. Hennessy witnessed. According to
Danhach, the superseding indictment “should have been a redflag [sic]” to the
court to conduct the hearing.
      These arguments are materially different to those presented to the
district court in his § 2255 motion which centered on ineffective assistance of
counsel and Mr. Hennessy’s deficient performance in light of the alleged
conflict of interest.
      “[B]ecause a ruling by a motions judge in the initial stages of an appeal
is not binding on the later merits panel, we have the responsibility to
determine whether the significant ruling here is valid.” Black v. Davis, 902
F.3d 541, 544 (5th Cir. 2018).      “[B]efore we may consider a petitioner’s
application for a COA on a particular issue, that petitioner must first submit
his request [on that issue] to the district court and have that request denied.”
Goodwin v. Johnson, 224 F.3d 450, 459 n.6 (5th Cir. 2000). If there is an
absence of a prior determination on a COA issue by the district court, then we
are “without jurisdiction to consider the appeal.” Whitehead v. Johnson, 157
F.3d 384, 388 (5th Cir. 1998). In other words, we will generally not consider


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                                  No. 18-20083
any issue raised for the first time in a COA. See Henderson v. Cockrell, 333
F.3d 592, 605 (5th Cir. 2003).
      The Government’s position is that we lack jurisdiction to consider
Danhach’s contention that the district court reversibly erred in failing to sua
sponte hold a second Garcia hearing. The Government reasons that because
Danhach’s § 2255 motion is based on a separate and distinct argument of
ineffective assistance of counsel for failing to request a second Garcia hearing,
the district court did not decide whether it erred for not sua sponte holding a
second hearing.
      In response, Danhach concedes that “he did not raise the issue of [the
district] court’s failure to conduct a second Garcia hearing subsequent to his
being indicted for obstruction of justice at trial or on [a]ppeal,” but he
maintains that his habeas petition raised this issue as it was “couched” in his
assertion of ineffective assistance of trial counsel.
       Upon review of his habeas petition, we find that Danhach did not
identifiably present the district court with his claim that the court failed to
conduct a second Garcia hearing.
      Danhach’s § 2255 motion specifically asserts that trial counsel performed
ineffectively for failing to move for a second Garcia hearing and that Mr.
Hennessy should have been replaced as he was a favorable witness to the
Government. The motion continues to focus exclusively on Mr. Hennessy’s
performance, alleging that counsel (1) “legitimize[d]” his own conduct, while
“over[riding] [Danhach’s] own authority” as the client; (2) “creat[ed] a direct
conflict of interest”; and (3) performed inadequately in regard to numerous
other aspects of the trial and sentencing, including having a conflict of interest




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                                      No. 18-20083
related to his prior representation of another individual.3                While we are
mindful that Danhach is a pro se litigant who is afforded liberal construction
of his pleadings, he still must have presented his arguments to the district
court in a “manner identifiable by that court.” Black, 902 F.3d at 547. Only
then can the court “be said to have considered” the issues. Id. That is not the
case here as the § 2255 issues and those presented on appeal are different.
       While it’s true that Danhach’s ineffective assistance of counsel claim and
a claim that the district court erred in not holding a second Garcia hearing
both require a finding of actual conflict, that similarity does not mean that
Danhach presented his Garcia hearing argument in a manner identifiable to
the district court. See United States v. Gentry, 941 F.3d 767, 776 (5th Cir. 2019)
(explaining that where a defendant alleges an ineffective assistance of counsel
claim that does not relate to multiple representations, Strickland v.
Washington, 466 U.S. 668 (1984), applies: a defendant must demonstrate that
the (1) conflict causes counsel to perform deficiently and (2) deficiency
prejudiced the defendant’s case); see also Garcia-Jasso, 472 F.3d at 243 (“A
district court need only conduct a Garcia hearing if there is an actual conflict
of interest.”).    Danhach’s habeas application complained of his counsel’s
performance errors only. But his COA and appellate briefing now assert that
the district court erred.
       We must construe Danhach’s § 2255 motion liberally, but we cannot
make an argument for him out of whole cloth. The district court liberally
construed Danhach’s habeas motion and found that the “substance of the relief
[he] sought” was that of an ineffective assistance of counsel claim. See Black,



       3 We recognize that Danhach noted in his § 2255 motion that “[a] Garcia Hearing
should [have] been held and Petitioner[’]s counsel should [have] been replaced.” However,
that statement, read in context, was clearly made in relation to an ineffective assistance of
counsel claim.
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                                  No. 18-20083
902 F.3d at 542 (noting that “the substance of the relief sought by a pro se
pleading [controls], not the label that the petitioner has attached to it”
(alteration in original) (quoting Hernandez v. Thaler, 630 F.3d 420, 426 (5th
Cir. 2011)). As such, we conclude that Danhach’s § 2255 motion did not
sufficiently raise the issue of the court’s alleged error in failing to conduct a
second Garcia hearing upon the filing of the superseding indictment. “The
district court, as a result, cannot be said to have considered [this] . . . issue[]
on which our motions judge granted a COA. The COA was thus granted
without jurisdiction.” Id. at 547.
      We therefore VACATE the COA and DISMISS this appeal, without
prejudice, for lack of appellate jurisdiction.




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