     Case: 16-41262      Document: 00514722519         Page: 1    Date Filed: 11/14/2018




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

                                    No. 16-41262                                FILED
                                  Summary Calendar                      November 14, 2018
                                                                           Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

              Plaintiff - Appellee

v.

DERRICK L. JIMERSON,

              Defendant - Appellant



                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:13-CV-523


Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       Derrick Jimerson, a federal prisoner proceeding pro se, seeks to vacate
his mail- and wire-fraud conspiracy conviction. He contends that the
government coerced him into pleading guilty by threatening to charge his
mother with perjury if he took the case to trial. The district court denied
Jimerson’s motion without conducting an evidentiary hearing. We conclude



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-41262
that because Jimerson fails to point to any indicia beyond his own conclusory
allegations that the government made these threats in bad faith, the district
court properly exercised its discretion in denying Jimerson an evidentiary
hearing. Accordingly, we AFFIRM.
                                              I.
       The government accused Jimerson and two codefendants of defrauding
multiple insurance companies by submitting a series of claims for damages
arising from fictitious automobile accidents. Jimerson entered into a written
plea agreement with the government. As part of the agreement, Jimerson
waived his right to appeal or collaterally attack his conviction. He further
acknowledged that his plea was voluntary and that he did not enter the
agreement in response to any threats. At his plea hearing, Jimerson again
confirmed that his plea was “freely and voluntarily made” and that no one
forced him, threatened him, or made any promises beyond those discussed in
the plea agreement. The district court accepted Jimerson’s plea and later
sentenced him to 137 months in prison.
       Jimerson did not appeal. Proceeding pro se, 1 he filed the instant 28
U.S.C. § 2255 motion to vacate his conviction. Jimerson asserted that
prosecutors improperly coerced him into pleading guilty by threatening to
charge his mother with perjury. He also argued that his counsel was ineffective
in failing to secure a lower sentence for him and failing to appeal.
       A magistrate judge recommended dismissing Jimerson’s petition. The
magistrate judge concluded that Jimerson’s coercion claim could only succeed
if prosecutors did not have probable cause to charge Jimerson’s mother with
perjury, which Jimerson did not allege. The magistrate judge further


       1 Jimerson retained counsel after filing his § 2255 motion. Counsel filed a reply to the
government’s response in opposition to the motion and filed objections to the magistrate
judge’s report and recommendations. Counsel does not represent Jimerson on appeal.
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                                      No. 16-41262
concluded that Jimerson’s collateral-attack waiver barred his ineffective
assistance of counsel claims. Jimerson objected to the magistrate judge’s report
and recommendations. He argued through counsel that (1) he was at least
entitled to an evidentiary hearing to determine whether prosecutors acted in
bad faith when they threatened to charge his mother and (2) his waiver did not
cover ineffective assistance of counsel claims that arose after his plea.
        The district court overruled Jimerson’s objections, adopted the report
and recommendation, and dismissed Jimerson’s § 2255 motion. Jimerson
requested a certificate of appealability from this court, which we granted on
the sole issue of whether the district court should have held an evidentiary
hearing to determine whether prosecutors threatened Jimerson’s mother in
bad faith.
                                          II.
        We review for abuse of discretion a district court’s decision to deny a
§ 2255 movant an evidentiary hearing. See United States v. Edwards, 442 F.3d
258, 264 (5th Cir. 2006). A § 2255 movant is only entitled to an evidentiary
hearing “if he presents ‘independent indicia of the likely merit of [his]
allegations.’” United States v. Reed, 719 F.3d 369, 373 (5th Cir. 2013)
(alteration in original) (quoting United States v. Cavitt, 550 F.3d 430, 442 (5th
Cir.    2008)).   Neither   “[c]onclusory       allegations”     nor   “speculative   and
unsupported accusations of government wrongdoing” will suffice to carry the
movant’s burden. Id. at 373-74; see also Edwards, 442 F.3d at 266-67 (denying
evidentiary hearing because record contained no evidence corroborating
movant’s allegation that government’s witness entered undisclosed civil-
immunity agreement); United States v. Auten, 632 F.2d 478, 480 (5th Cir. 1980)
(denying     evidentiary    hearing    because      record     contained   no   evidence
corroborating movant’s allegation that government knowingly used perjured
testimony at trial).
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                                  No. 16-41262
      “[A] prisoner ‘may not ordinarily repudiate’ statements made to the
sentencing judge when” entering a guilty plea. Blackledge v. Allison, 431 U.S.
63, 73 (1977) (quoting Fontaine v. United States, 411 U.S. 213, 215 (1973)).
Such statements “carry a strong presumption of verity”; although no per se
rule prevents a prisoner from subsequently repudiating them, the prisoner
must wield specific factual allegations to do so. Id. at 74-76.
      In negotiating a guilty plea, “threatening prosecution of a third party
family member is not itself legally wrong.” United States v. Diaz, 733 F.2d 371,
375 (5th Cir. 1984). But because threats of third-party prosecution “pose a
greater danger of coercion than purely bilateral plea bargaining, . . . ‘special
care must be taken to ascertain the voluntariness of’ guilty pleas entered in
such circumstances.” United States v. Nuckols, 606 F.2d 566, 569 (1979)
(quoting United States v. Tursi, 576 F.2d 396, 398 (1st Cir. 1978)). Accordingly,
although “[i]t is generally within a prosecutor’s discretion merely to inform an
accused that an implicated third person ‘will be brought to book if he does not
plead [guilty]’ . . . prosecutors who choose to use that technique must observe
a high standard of good faith.” Id. (quoting Kent v. United States, 272 F.2d 795,
798 (1st Cir. 1959)). In other words, prosecutors may leverage potential
charges against a defendant’s family member during plea bargaining provided
they have probable cause to bring the threatened charges. See United States v.
McElhaney, 469 F.3d 382, 385 (5th Cir. 2006); Diaz, 733 F.2d at 375; Nuckols,
606 F.2d at 569.
      Here, Jimerson’s conclusory allegations that the government made bad-
faith threats to prosecute his mother for perjury are not enough to warrant an
evidentiary hearing, especially in light of his attestation under oath that he
entered his plea voluntarily and free of threat. In support of his allegations,
Jimerson submitted an affidavit stating that he only pleaded guilty because
prosecutors threatened to charge his mother with perjury. Even assuming this
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                                 No. 16-41262
affidavit sufficiently establishes that prosecutors threatened to charge
Jimerson’s mother, it says nothing about whether they lacked probable cause
to do so or otherwise made that threat in bad faith. None of the other affidavits
Jimerson submitted below make any mention of any threats (made in bad faith
or otherwise) to prosecute Jimerson’s mother. Accordingly, the record contains
no “independent indicia” suggesting that Jimerson is entitled to relief under
§ 2255, and the district court therefore acted within its discretion in denying
Jimerson’s motion without an evidentiary hearing. Cf. McElhaney, 469 F.3d at
386 (affirming denial of defendant’s request to withdraw guilty plea in part
because defendant “attested to the voluntariness of his plea” and record was
“devoid of evidence demonstrating that the Government had a bad faith basis”
for threatening to charge defendant’s wife (quoting United States v.
McElhaney, No. 3:03-CR-370-L, 2005 WL 3148234, at *4 (N.D. Tex. Nov. 17,
2005))).
                                      III.
      For the foregoing reasons, we AFFIRM.




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