    Case: 16-20508   Document: 00514699130    Page: 1   Date Filed: 10/26/2018




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT


                               No. 16-20508                   United States Court of Appeals
                                                                       Fifth Circuit

                                                                     FILED
                                                              October 26, 2018
                                                                Lyle W. Cayce
UNITED STATES OF AMERICA,                                            Clerk


                                        Plaintiff–Appellee,

versus

ANDRE MCDANIELS,

                                        Defendant−Appellant.




               Appeal from the United States District Court
                    for the Southern District of Texas




Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

     Andre McDaniels filed a motion under 28 U.S.C. § 2255, alleging that
the prosecution breached its plea agreement and that his attorney provided
ineffective assistance of counsel (“IAC”). Upon the dismissal of his motion,
McDaniels filed a Federal Rule of Civil Procedure 59(e) motion to alter the
judgment, which the district court dismissed without an evidentiary hearing.
Because the Rule 59 motion constitutes a successive § 2255 application under
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                                  No. 16-20508
Gonzalez v. Crosby, 545 U.S. 524, 532 (2005), this court is without jurisdiction
to review McDaniel’s claims. Moreover, the district court did not abuse its dis-
cretion in denying McDaniels an evidentiary hearing because he has not pro-
vided independent indicia of the merit of his allegations. We therefore affirm
in part and dismiss the appeal in part for want of jurisdiction.

                                        I.
      In 2011, McDaniels was indicted for participating in a sex-trafficking
scheme to force women and children into prostitution. While the charges were
pending, McDaniels was separately indicted for tampering by corrupt persua-
sion with witnesses who were scheduled to testify in the sex-trafficking case.
Recognizing the gravity of the charges, McDaniels agreed to plead guilty of sex
trafficking in exchange for a 96-month sentence. The written agreement made
no mention of the potential impact of his guilty plea in the witness-tampering
case. Furthermore, it expressly stated that the prosecution made no promises
or representations other than those contained therein and that any modifica-
tion to the agreement must be made in a writing signed by both sides.

      In 2012, McDaniels pleaded guilty, without a plea agreement, to nine
counts of witness tampering. The presentence report (“PSR”) assigned a total
offense level of 27 and a criminal history category of III, resulting in an advis-
ory guideline range of 87 to 108 months. At sentencing, the government stated
that it did not want to add criminal history points for the sex-trafficking
offenses, lest McDaniels be placed in a worse position for having pleaded guilty.
Accordingly, the district court reduced McDaniel’s criminal history to Cate-
gory II and sentenced him to 78 months, the lowest point on the guideline
range, to run consecutively to the undischarged portion of the sentence in the
sex-trafficking case.

      McDaniels unsuccessfully appealed the substantive reasonableness of
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the sentence. United States v. McDaniels, 570 F. App’x 371 (5th Cir. 2014) (per
curiam). He next filed a motion to vacate under § 2255, seeking relief on two
interrelated grounds. First, he claimed that the prosecution had orally modi-
fied the written plea agreement, promising that his guilty plea would not
impact the statutory range of punishment in the present case. He insisted that
the government had breached that commitment by encouraging the trial judge
to consider his sex-trafficking conviction when calculating his base offense
level and to impose a consecutive, rather than concurrent, sentence. 1 Second,
McDaniels asserted that his attorney had rendered IAC in failing to object to
that breach at trial.

       The district court denied the motion. McDaniels then filed a Rule 59
motion to alter the judgment, arguing that the court had erred in dismissing
his claims and refusing to grant an evidentiary hearing. That motion also was
denied. McDaniels moved for a certificate of appealability, which this court
granted on (1) whether the government promised that McDaniels’ guilty plea
would not affect his statutory or guideline ranges; (2) whether, if such a prom-
ise was made, the government breached it; (3) whether his trial attorney prof-
fered IAC by failing to object to any such breach; and (4) whether the court
erred by dismissing the foregoing claims without an evidentiary hearing. The
government has since challenged this court’s jurisdiction to hear this appeal.

                                             II.
       Our jurisdiction depends on two inquiries. We must first assess whether



       1 Section 2J1.2(a) of the guidelines prescribes a base offense level of 14 for witness
tampering. U.S. SENTENCING GUIDELINES MANUAL § 2J1.2(A) (U.S. SENTENCING COMM’N
2012). The PSR nonetheless recommended that, under § 2X3, McDaniels receive a base
offense level of 30 because he had obstructed the investigation or prosecution of a criminal
offense. McDaniels maintained that the use of § 2X3.1 to enhance his sentencing range vio-
lated the government’s oral promise.
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McDaniels’s Rule 59 motion was a second or successive habeas petition. Addi-
tionally, we must determine whether McDaniels filed a timely notice of appeal.
We conclude that we have jurisdiction to consider only his request for an evi-
dentiary hearing.

                                             A.
       Under Rule 59(e), a party may move to alter or amend a judgment no
later than twenty-eight days after entry of judgment. FED. R. CIV. P. 59(e).
Nevertheless, a defendant is “generally permitted only one motion under
§ 2255 and may not file successive motions without first obtaining this Court’s
authorization.” United States v. Hernandes, 708 F.3d 680, 681 (5th Cir. 2013);
28 U.S.C. § 2255(h). Absent such authorization, a district court lacks jurisdic-
tion to hear the § 2255 motion. Id. Consequently, we must decide whether
McDaniels’s motion for reconsideration was a bona fide Rule 59 motion or a
successive habeas application.

       In Gonzalez, 545 U.S. at 532, the Court held that a Rule 60 motion that
“seeks to add a new ground for relief” or “attacks the federal court’s previous
resolution of a claim on the merits” is a successive 28 U.S.C. § 2254 petition.
Conversely, a motion that merely targets a procedural defect in the integrity
of the federal habeas proceedings is a bona fide Rule 60 motion over which a
district court has jurisdiction. Id. We have applied Gonzalez to Rule 59
motions 2 and to motions under § 2255. 3


       2See Williams v. Thaler, 602 F.3d 291, 303 (5th Cir. 2010); United States v. Patton,
No. 17-10942, 2018 U.S. App. LEXIS 25566, at *6−7 (5th Cir. Sept. 10, 2018) (per curiam)
(unpublished).
       3  See Hernandes, 708 F.3d at 681–82; United States v. Brown, 547 F. App’x 637, 641
(5th Cir. 2013) (considering whether a motion for reconsideration was a Rule 59(e) motion or
an unauthorized § 2255 motion); Patton, 2018 U.S. App. LEXIS 25566, at *6−7. When a
Rule 59 motion is found to be an unauthorized successive habeas petition, it does not toll the
deadline to appeal an original judgment. See Uranga v. Davis, 893 F.3d 282, 283–84 (5th Cir.
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                                        No. 16-20508
       In his § 2255 motion, McDaniels claimed that the government had
breached its plea agreement and that his attorney rendered IAC in violation of
the Fifth and Sixth Amendments, respectively. After the district court dis-
missed the motion, McDaniels submitted a Rule 59(e) motion to alter the judg-
ment, repeating those same allegations. McDaniels further maintained that
the court had erred in dismissing the motion without an evidentiary hearing.

       The district court was without jurisdiction to hear McDaniels’s substan-
tive claims under the Fifth and Sixth Amendments. Because they attack the
district court’s previous ruling on the merits, they constitute a successive
habeas application. 4 Hence, we dismiss the appeal as to those issues.

       McDaniels’s request for an evidentiary hearing, however, is a bona fide
Rule 59(e) motion because it merely challenges a procedural defect in the integ-
rity of the § 2255 proceeding. Indeed, McDaniels attacks not the ruling on his
substantive claims, but the manner by which the court reached that decision.
As a result, his request for an evidentiary hearing is a genuine Rule 59(e)
motion, not a successive habeas petition in disguise. See Brown, 547 F. App’x
at 642.

                                               B.
       In a civil action, a timely notice of appeal is a jurisdictional requirement.
Bowles v. Russell, 551 U.S. 205, 214 (2007). Because a § 2255 motion is a civil



2018); accord Patton, 2018 WL 4328623, at *4. Although McDaniels does not appeal from
the original judgment, we pause to caution habeas petitioners, many of whom are without
counsel, of the risk that if a Rule 59 motion is found to be a successive writ application and
they do not file a notice of appeal from an initial judgment, they can lose their right to appeal
both from the initial judgment and from the denial of reconsideration.
       4 See Hernandes, 708 F.3d at 681–82 (finding that defendant’s Rule 60(b) motion was,
in reality, a second habeas petition because it “resurrected . . . substantive argument[s]” from
his original § 2255 motion); Mitchell v. Davis, 669 F. App’x 284, 285 (5th Cir. 2016) (per
curiam).
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action, we must ask whether McDaniels filed a timely notice of appeal. United
States v. de los Reyes, 842 F.2d 755, 757 (5th Cir. 1988). A notice of appeal in
a civil case in which the United States is a party must be filed within sixty
days of judgment. FED. R. APP. P. 4(a)(1)(B)(i). Nonetheless, a timely Rule 59
motion suspends that sixty-day period. 5

       McDaniels’ Rule 59 motion was properly filed within twenty-eight days
of the denial of his § 2255 motion. See FED. R. CIV. P. 59(e). Consequently, the
sixty-day window to appeal did not begin to run until July 15, 2016, when the
district court dismissed the Rule 59 motion. Because McDaniels filed his notice
of appeal one week later, it was timely. This court therefore has jurisdiction
to hear McDaniels’s claim that the district court erred in denying an eviden-
tiary hearing.

                                              III.
       A § 2225 movant is entitled to a hearing “[u]nless the motion and the
files and records of the case conclusively show that the prisoner is entitled to
no relief” on his underlying claims. § 2255(b). We review the denial of an evi-
dentiary hearing for abuse of discretion. United States v. Cavitt, 550 F.3d 430,
442 (5th Cir. 2008). There is none.

       To warrant reversal, a petitioner must present “independent indicia of
the likely merit of [his] allegations, typically in the form of one or more affi-
davits from reliable third parties.” United States v. Cervantes, 132 F.3d 1106,
1110 (5th Cir. 1998). But if the showing consists of “mere conclusory allega-
tions,” United States v. Edwards, 442 F.3d 258, 264 (5th Cir. 2006), or is
otherwise “inconsistent with the bulk of [his] conduct,” Cervantes, 132 F.3d



       5FED. R. APP. P. 4(a)(4)(A)(iv) (“[T]he time to file an appeal runs . . . from the entry of
the order disposing of the last such remaining motion” filed under Rule 59).
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                                     No. 16-20508
at 1110, an evidentiary hearing is unnecessary. McDaniels insists that the
government breached its promise that his guilty plea in the sex-trafficking case
would not affect the sentencing range in the present witness-tampering case.
He further contends that his attorney provided IAC in failing to raise that
objection at trial.

      Where a defendant pleads guilty based on a promise by the prosecutor,
“breach of that promise taints the voluntariness of his plea” and offends the
Fifth Amendment. 6 But McDaniels has offered no independent indicia of any
breach or consequent IAC.

      Indeed, the written plea agreement contained no language regarding the
impact it might have in the present case. Moreover, it explicitly stated that
the government made no other promises or representations and that any modi-
fication to the plea must be made in a writing signed by both sides. During
rearraignment in the sex-trafficking case, McDaniels reaffirmed that he had
received no promises outside the plea agreement. Similarly, at rearraignment
in the instant case, McDaniels admitted that the government had made no
promises affecting sentencing. He acknowledged that the government could
ask the court to impose the longest possible sentence available for witness tam-
pering. And he confirmed his understanding that he faced a maximum sen-
tence of life in prison and that he could not withdraw his guilty plea if the
sentence was greater than expected.

      Notwithstanding his representations in court, McDaniels now contends
that the government induced his guilty plea by assuring him that it would have
no impact on sentencing in this case. We generally will not allow a defendant




      6 Davis v. Butler, 825 F.2d 892, 894 (5th Cir. 1987) (quoting McKenzie v. Wainwright,
632 F.2d 649, 651 (5th Cir. Unit B 1980)).
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                                      No. 16-20508
to contradict his testimony given under oath at a plea hearing. 7 Furthermore,
official documents—such as a written plea agreement—are “entitled to a
presumption of regularity and are accorded great evidentiary weight.” Hobbs
v. Blackburn, 752 F.2d 1079, 1081 (5th Cir. 1985). Nevertheless, a defendant
may seek collateral relief based on an alleged promise, though inconsistent
with his statements in open court, by proving “(1) the exact terms of the alleged
promise, (2) exactly when, where, and by whom the promise was made, and
(3) the precise identity of an eyewitness to the promise.” Cervantes, 132 F.3d
at 1110.

       McDaniels’ attorney stated twice on the record that his client was plead-
ing guilty based on his advice that the plea would not influence sentencing in
the witness-tampering case. Sherri Zack, the prosecutor in the sex-trafficking
case, “agree[d]” with this advice that the guilty plea “d[id] not affect” sentenc-
ing. McDaniels claims that those statements constitute an oral modification
to the written plea agreement.

       That argument is unavailing.              The district court explicitly warned
McDaniels during rearraignment that any such prosecutorial commitment
must be in writing. The court further instructed Zack to have the prosecutor,
John Jocher, provide that guarantee to McDaniels “immediately, in writing,
with no equivocations.” Finally, the court stressed that McDaniels could not
rely on the rearraignment discussion because it was “not intend[ed] . . . to be
in any way a suggestion of what” the district court in the witness-tampering
case might decide.

       McDaniels has presented no independent indicia of any effort to secure


       7 Cervantes, 132 F.3d at 1110; Blackledge v. Allison, 431 U.S. 63, 73–74 (1977) (“Sol-
emn declarations in open court carry a strong presumption of verity,” forming a “formidable
barrier in any subsequent collateral proceedings.”).
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                                      No. 16-20508
a binding promise. Despite the district court’s warning, McDaniels pleaded
guilty of witness tampering without first obtaining a plea agreement from
Jocher. 8 He neither objected to the government’s alleged breach at trial nor
raised that issue on direct appeal. 9 He may not now seek the benefit of a bar-
gain he did not make. Because McDaniels has offered no independent indicia
of the likely merit of his allegations, we need not grant an evidentiary hearing
on his § 2255 motion.

       The order denying the Rule 59 motion is AFFIRMED. The appeal of the
Fifth and Sixth Amendment claims is DISMISSED for want of jurisdiction.




       8 Jocher acknowledged that the government did not want McDaniels to be placed in a
worse position for having pleaded guilty of sex trafficking. At sentencing, the government
consequently requested that the court reduce McDaniels’ criminal history category to II. But
McDaniels cites no evidence that Jocher promised that the guilty plea would not have any
effect on sentencing.
       9 See McKenzie, 632 F.2d at 652 (finding defendant’s allegations inconsistent with the
bulk of his conduct because he “waited three years, and during that time, pressed an inter-
vening appeal on other grounds”).
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                                 No. 16-20508
JAMES E. GRAVES, JR., Circuit Judge, concurring in part, and dissenting in
part:

      I agree with the majority that this court has jurisdiction to consider only
McDaniels’ claim that the district court erred in rejecting his § 2255 motion
without an evidentiary hearing. But I disagree with the majority’s conclusion
that McDaniels has not produced independent indicia of a promise made by
the Government. Although the majority cites Davis v. Butler, 825 F.2d 892 (5th
Cir. 1987), it reaches a conclusion which is contrary to the analysis and
conclusion in Davis. Therefore, I respectfully dissent.
                                       I.
      In Davis, a state prisoner charged with second degree murder was
sentenced to life imprisonment after changing his plea to guilty on the third
day of his trial. The defendant unsuccessfully sought postconviction relief in
Louisiana state courts, and later, a district court denied his federal habeas
corpus petition. The defendant argued, in part, that his plea of guilty was
involuntary because his attorney informed him that he would be pardoned in
three years. Id. at 893–94. The district court concluded that the transcript of
the guilty plea hearing indicated the defendant understood the nature of the
charges and the consequences of his guilty plea, and determined that the
sentencing judge’s explanations rendered any error in his attorney’s
explanation of the charges and sentence harmless. Id. at 893.
      The Davis court remanded the defendant’s claim because the district
court denied and dismissed the claim without an evidentiary hearing. Id. at
895. The court stated, “[i]n situations where an actual promise has been made
to a petitioner, rather than there being merely an ‘understanding’ on his part,
federal habeas relief is awardable if the petitioner ‘prove[s] (1) exactly what
the terms of the alleged promise were; (2) exactly when, where, and by whom
such a promise was made; and (3) the precise identity of an eyewitness to the
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                                 No. 16-20508
promise.’” Id. at 894 (quoting Smith v. McCotter, 786 F.2d 697, 701 (5th Cir.
1986) (emphasis in original)). The court concluded the defendant’s allegations
were specific enough to require an evidentiary hearing because the defendant
asserted that “on the third [day] of trial a recess was taken at which time a
conference was held. During the conference [the defendant’s] attorney . . .
promised him, in the presence of [two people], that if he plead [sic] guilty” his
attorney would get him pardoned in three years, and the defendant accepted
the bargain and pleaded guilty shortly thereafter. Davis, 825 F.2d at 894.
                                       II.
      Similarly, McDaniels’ pro se brief indicates that his allegations are
specific enough to warrant an evidentiary hearing. McDaniels contends: (1)
federal prosecutor John Jocher (“Jocher”) promised McDaniels’ attorney, in the
week prior to rearraignment in the sex-trafficking case, that (2) McDaniels’
guilty plea in the sex-trafficking case would not affect his statutory range of
punishment or guidelines range in the present case; and (3) federal prosecutor
Sherri Zack (“Zack”) confirmed this promise, both at rearraignment and
sentencing in the sex-trafficking case. McDaniels has presented his prior
statements and those of his attorney, the concurrence of federal prosecutor
Zack, and the directive given by the district court judge, during the
rearraignment and sentencing in the sex-trafficking case, that indicate
“independent indicia” sufficient to overcome the barrier facing McDaniels.
Jocher’s reference to plea discussions in the present case is additional
“independent indicia.” Further, the district court acknowledged promises that
each side made regarding McDaniels’ plea and sentence.
      The majority is correct that McDaniels has not provided evidence of any
written modification to the plea agreement, and the record does indicate that
McDaniels understood the potential terms of his sentence. However, neither
the existence of a written modified plea agreement nor whether McDaniels
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understood the terms of his sentence are dispositive as to whether the
Government made a binding oral promise in the present case. See Davis, 825
F.2d at 894 (“The question here is not whether [he] understood the terms of his
sentence, but whether he was promised . . . and actually believed [the
promise].”). The majority is also correct in stating that McDaniels’ prior
acknowledgments that the Government had made no promises to him that
would affect his sentencing create a “formidable barrier” for him to overcome.
Id. But the prior acknowledgments are not conclusive as to whether a promise
was in fact made. Id. (quoting Blackledge v. Allison, 431 U.S. 63, 74 (1977))
(“This acknowledgement, although a ‘formidable barrier,’ does not conclusively
bar him from proving the existence of a promise.”). McDaniels sufficiently
contradicted statements he made at the plea hearing by providing
“independent indicia” of the merits of his allegations. Davis, 825 F.2d at 894
(quoting United States v. Raetzsch, 781 F.2d 1149, 1151 (5th Cir. 1986)). Cf.
United States v. Fuller, 769 F.2d 1095, 1099 (5th Cir. 1985) (to be entitled to
evidentiary hearing on claim that sworn statements during the plea proceeding
were false, petitioner must make “specific factual allegations supported by the
affidavit of a reliable third person”).
      The majority is correct that McDaniels has not provided evidence that
he attempted to secure a binding promise from Jocher, and that McDaniels
pleaded guilty without obtaining a plea agreement from Jocher. However,
neither of those truths provide answers to the issue in question. Based on the
lack of clarity regarding McDaniels’ communications with Jocher, along with
Jocher’s ambiguous concession that the Government did not want to put
McDaniels in a worse position for having pleaded guilty, the results of the
present inquiry are inconclusive. McDaniels’ claim that the Government broke
its promise to him, a promise upon which he relied in pleading guilty to a
serious criminal offense, should be remanded for an evidentiary hearing.
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        In addition, because the merits of McDaniels’ ineffective assistance of
counsel claim against his attorney rest upon the resolution of his claim that
the Government breached its promise to McDaniels, both claims should be
remanded to the district court, and decided after an evidentiary hearing is
held.
        Because the majority reaches the opposite conclusion, I respectfully
dissent.




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