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United States v. Smith

United States Court of Appeals, Fifth Circuit

December 18, 2019

UNITED STATES OF AMERICA, Plaintiff-Appellee
v.
JOHNNY SMITH, Defendant-Appellant

          Appeal from the United States District Court for the Eastern District of Louisiana

          Before STEWART, CLEMENT, and HO, Circuit Judges.

          EDITH BROWN CLEMENT, CIRCUIT JUDGE.

         BACKGROUND

         Defendant 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.

         Smith 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 ("COA").

         Acting 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 appeal.

         ANALYSIS

         At the 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 section 2255.
(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).

         The 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).

         We 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. ...


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