from the United States District Court for the Eastern
District of Louisiana
STEWART, CLEMENT, and HO, Circuit Judges.
BROWN CLEMENT, CIRCUIT JUDGE.
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.
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 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
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
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
(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).
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).
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. ...