Case: 19-40229    Document: 00515572184         Page: 1    Date Filed: 09/21/2020




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

                                      No. 19-40229                              FILED
                                                                       September 21, 2020
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

              Plaintiff - Appellee

v.

JAMES BAYLOUS WHITE, also known as Buck White,

              Defendant - Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:13-CV-166


Before DENNIS, SOUTHWICK, and HO, Circuit Judges.
PER CURIAM:*
        A federal inmate filed a motion for relief from his conviction based on his
counsel’s failure to advise him about the availability of the option of an open
plea. The district court denied relief. We AFFIRM.


                FACTUAL AND PROCEDURAL BACKGROUND
        In January 2010, a federal grand jury in the Eastern District of Texas,
Sherman Division, indicted James Baylous White on two counts of conspiracy



        *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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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to manufacture, distribute, or possess with intent to manufacture or distribute
methamphetamine and pseudoephedrine.           The Government offered a plea
agreement through which White would plead guilty to Count One concerning
methamphetamine and stipulate that he “was an organizer, leader, manager
or supervisor,” making United States Sentencing Guidelines Section 3B1.1(c)
applicable. In return, the Government would dismiss Count Two and agree
that a three-level reduction for acceptance of responsibility would apply. White
did not accept the offer, and the case proceeded to trial on both counts.
      At trial, the Government called White’s girlfriend, Bertha Mae Russell,
as a witness. Russell had pled guilty to an offense and agreed to cooperate
with the Government by testifying against White. Apparently, the testimony
was unexpected and sufficiently compelling that White decided to change his
plea. White pled guilty to Count Two of the indictment without the benefit of
a written plea agreement, and the Government dismissed Count One.
      At the sentencing hearing, White objected to the Presentence Report
(“PSR”). White first objected to a two-level enhancement under Guidelines
Section 2D1.11(b)(1) for possession of a dangerous weapon, and the district
court overruled the objection. White also objected to a three-level enhancement
under Section 3B1.1(c) for his supervisory role in the offense, and the district
court again overruled the objection. The district court also held White was not
eligible for a reduction for acceptance of responsibility because he did not enter
his guilty plea until after his jury trial had begun.
      The district court imposed a 240-month term of imprisonment followed
by three years of supervised release. White’s direct appeal was unsuccessful.
See United States v. White, 495 F. App’x 549, 552 (5th Cir. 2012).
      White filed for post-conviction relief, claiming that his trial counsel,
Phillip Linder, provided ineffective assistance. See 28 U.S.C. § 2255. Relevant
to this appeal is White’s claim that he rejected the plea offer based on Linder’s
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inaccurate advice during plea negotiations that a three-level enhancement
could not be applied to him under the law, and that White had to go to trial to
challenge any sentencing enhancement. White also asserted that Linder had
not informed White that he could lose credit for acceptance of responsibility if
White went to trial. White contended that he would have accepted the plea
offer but for the alleged incorrect advice.
      The district court denied the Section 2255 motion. This court granted a
Certificate of Appealability (“COA”) on two of White’s claims: whether Linder’s
inaccurate advice caused White to reject the plea offer, and relatedly, whether
the district court abused its discretion in denying relief on this claim without
holding an evidentiary hearing.        Later, we vacated the district court’s
judgment in part and remanded to the district court for proceedings on the
ineffective assistance claim. See United States v. White, 715 F. App’x 436, 438
(5th Cir. 2018).
      A magistrate judge conducted an evidentiary hearing on remand. Linder
testified that after he negotiated a plea offer and then reviewed the offer with
his client, White “was adamant about wanting to go to trial.” White did not
believe that his girlfriend, Russell, would testify against him, and based on
that belief, White did not think that the Government could establish his guilt.
      Linder denied that he had told White that a leadership role enhancement
could not be applied, and Linder also denied that he had told White that it was
necessary to go to trial to challenge the role enhancement. Linder explained
to White that sentencing enhancements could be challenged in objections to
the PSR, but White did not want to plead guilty and admit that a role
enhancement should be applied. Linder also advised White that he would lose
credit for acceptance of responsibility if White went to trial.
      During Linder’s testimony, White’s counsel introduced a letter White
had written to the Government’s attorney. In the letter, White stated he was
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willing to plead guilty if the Government would “drop the leadership role and
the gun enhancement” and provide its assurance that these enhancements
“will not be used by the probation officer.”         Linder testified that the
Government provided him with a copy of the letter during his representation
of White, but Linder knew that the Government would not agree to abandon
the role enhancement and that the Government would argue at sentencing
that the gun enhancement applied.
      White testified that Linder never told him he would not receive credit for
acceptance of responsibility if he went to trial; in fact, Linder never discussed
acceptance of responsibility with him at all. If Linder had done so, White would
have accepted the plea offer even though he did not want to stipulate to the
role enhancement. White testified he went to trial solely to challenge the role
enhancement, believing it was the only way to make that challenge, and White
decided to plead guilty after Russell gave testimony that supported the role
enhancement.       White further testified that Linder did not explain the
differences between what would happen if White did or did not plead guilty.
      The magistrate judge issued a report finding that (1) White would not
have accepted the plea offer, “regardless of what he was told about the plea
agreement”; (2) White wanted to go to trial and did not believe Russell would
testify against him; (3) White had failed to show deficient performance on the
part of Linder; and (4) Linder reviewed the terms of the plea agreement with
White, but White was not interested in the details of the agreement, as he had
already decided to reject the plea offer. The magistrate judge recommended
that the Section 2255 motion be denied.
      White filed timely objections, but the district court adopted the report
and recommendation.       The court dismissed the Section 2255 motion but
granted a COA “with respect to the claim that counsel’s deficient performance


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caused [White] to reject the Government’s pre-trial plea offer.” White timely
appealed.


                                 DISCUSSION
        White was represented by counsel in the Section 2255 proceedings in
district court but filed a pro se notice of appeal and appellate brief. He contends
the district court erred in denying him relief for these defects in his counsel’s
assistance: (1) failing to advise White that he would not receive credit for
acceptance of responsibility if White went to trial; (2) erroneously advising
White that he had to go to trial to challenge the role enhancement; and
(3) failing to advise White of the possibility of entering an open plea. We
consider the first two arguments together because they are within the scope of
the COA. White’s third argument will be treated separately because of a
threshold issue of whether the COA allows us to resolve it.


I.      Whether trial counsel’s deficient performance caused White to reject the
        Government’s plea offer
        On appeal from a district court’s grant or denial of a Section 2255
application, we review that court’s legal conclusions de novo and its factual
findings for clear error. United States v. Cavitt, 

, 435 (5th Cir.
2008). Claims of ineffective assistance of counsel are mixed questions of law
and fact, reviewed de novo. United States v. Phea, 

, 841 (5th Cir.
2020). Credibility determinations are factual findings, which are not clearly
erroneous so long as the findings are plausible in light of the record as a whole.
United States v. Montes, 

, 384 (5th Cir. 2010).
        An attorney renders constitutionally ineffective assistance if his
performance falls below an objective standard of reasonableness; that deficient
performance also must prejudice the client. Strickland v. Washington, 466

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U.S. 668, 687–88 (1984). For prejudice, White “must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”

A
failure to establish either deficient performance or prejudice defeats the claim.

When a defendant like White contends that counsel’s deficient
performance caused the defendant to reject a plea offer, the Strickland
prejudice inquiry requires the defendant to show that: (1) but for counsel’s
ineffective advice, there is a reasonable probability that the defendant would
have accepted the plea; (2) the court would have accepted its terms; and
(3) under the plea, the sentence would have been less severe than the one
imposed. Lafler v. Cooper, 

, 164 (2012).
      White argues that the evidence shows that he was willing to accept the
Government’s plea offer if Linder had properly advised him. At the evidentiary
hearing on White’s claim for ineffective assistance of counsel, White testified
that Linder failed to advise him that by going to trial, White would not receive
credit for acceptance of responsibility. Linder testified to the contrary. The
district court found Linder’s testimony more credible and determined that
Linder indeed reviewed with White “the risk of losing credit for acceptance of
responsibility by going to trial.” Because this factual finding is plausible in
light of the record as a whole, it is not clearly erroneous. See 

. White has therefore failed to show that Linder performed deficiently
by failing to advise him that he would lose the credit for acceptance of
responsibility by going to trial.
      White next argues that Linder erroneously advised that the only choices
were to accept the plea offer or, if White wanted to challenge the role
enhancement, to go to trial. According to White, the record shows that he
would have accepted a plea deal had he been properly advised. The district
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court did not address the factual question of what choices were described by
his counsel. The court did determine, though, that White “was not going to
accept the plea offer, regardless of what he was told about the plea agreement.”
In view of the testimony that Linder informed White about the plea agreement
but that White was adamant about going to trial in part because he did not
believe Russell would testify against him, the district court’s factual
determination is plausible and not clearly erroneous. See 

. White thus fails to establish prejudice because he has not shown that, but
for Linder’s deficient advice, there is a reasonable probability that White would
have accepted the plea offer.


II.      Whether White’s trial counsel was ineffective for failing to advise White of
         the possibility of entering an open plea
         White’s third argument of ineffective assistance of counsel is that Linder
failed to advise him of the possibility of entering an open plea. An open plea is
a guilty plea made by a criminal defendant without the benefit of a plea
agreement offered by the government. We first must consider whether this
argument is within the scope of the COA granted by the district court. This
court determined that this issue would benefit from assistance of pro bono
counsel. Attorney Paulette C. Miniter agreed to serve in that capacity. We
thank her for able assistance to her client and this court. Her supplemental
brief addressed “whether the claim that trial counsel was deficient in failing to
advise Appellant of his right to enter an open plea falls within the grant of the
[COA], and, if so, the merits of this claim.” The Government submitted a
response. We first address the scope of the COA.
         A.    Claims covered by the Certificate of Appealability
         We will not consider claims that exceed the scope of issues on which a
COA is granted. United States v. Kimler, 

, 430–31 (5th Cir. 1998).

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If a party expressly seeks a COA on additional issues, which White has not
done, this court may certify those issues if the party meets the requirements
for a COA. See

Thus, we first consider whether the open-plea claim
is within the scope of the COA granted by the district court.
        We begin with a review of the procedural history of White’s Section 2255
motion. In the motion, White alleged Linder told him that “the only way to
challenge any enhancement at sentencing is” to go to trial, and Linder “did not
inform [him] that he could lose the ‘acceptance of responsibility’ credit” if he
went to trial. White claimed that “[b]ut for [Linder’s] incorrect advice, [he]
would have accepted the plea offer made by the Government.” White did not
explicitly reference in the motion the now-raised open-plea argument.
        On March 31, 2016, the district court denied the motion. In this court’s
order of May 30, 2017, we summarized White’s argument, then stated that “a
COA is GRANTED on this ineffective assistance claim, as well as on the related
issue” of whether to have an evidentiary hearing. Our order stated that the
claim
        concerns the advice provided by counsel in connection with a
        proposed pretrial plea bargain, which, among other provisions,
        called for him to receive an enhancement for his role in the offense
        and for him to receive credit for acceptance of responsibility. White
        asserts that he was erroneously advised by counsel that a role
        enhancement could not be applied under the law, but that he had
        to go to trial in order to challenge the enhancement. He further
        asserts that counsel failed to advise him that he risked losing
        credit for acceptance of responsibility if he did not plead guilty
        prior to trial.
We issued an opinion on the COA on March 22, 2018, in which we remanded
for “further proceedings on the ineffective-assistance claim on which the COA
was granted.” White, 715 F. App’x at 438.
        Because the authority given to the district court for the remand was to
consider further the matters within the reach of the COA, that is the limit of
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what the district court could decide. See United States v. Lee, 

,
321 (5th Cir. 2004). This limitation arises from the “mandate rule,” which,
“[a]bsent exceptional circumstances, . . . bars litigation of issues decided by the
district court but foregone on appeal or otherwise waived, for example because
they were not raised in the district court.”

until counsel was appointed for White on remand that the
issue of Linder’s failure to advise White of the option of an open plea was
raised. The issue was first mentioned at the evidentiary hearing when White’s
new counsel questioned White about whether Linder advised White of an open
plea option and whether White would have entered such a plea if White had
been advised.
      The magistrate judge’s report did not discuss the testimony about an
open plea or otherwise address the issue. White objected to the report and
recommendation, emphasizing his open-plea argument.            The district court
adopted the magistrate judge’s report and concluded, without elaboration, that
White’s objections were unmeritorious. It granted a COA “with respect to the
claim that counsel’s deficient performance caused Movant to reject the
Government’s pre-trial offer.” In light of the mandate rule, that new COA
cannot include any issue that this court did not remand to the district court.

could be narrower, but in light of the district court’s similar,
if more succinct, language, we will apply the language of our 2017 COA order
but without the issue of an evidentiary hearing being again before us.
      White argues that the COA permits his open-plea argument because he
made the argument before the district court, and the court later granted a COA
on ineffective assistance of counsel relating to rejection of the Government’s
plea offer that did not detail any specific parts of that argument. White cites
one of our opinions which held that because a district court granted a COA that
used “broad, general language” instead of a specific list of issues for which the
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ineffective assistance claim was granted, the COA “effectively permit[ted]” all
claims of ineffective assistance. Jones v. Cain, 

, 230 (5th Cir.
2000).   The “broad, general language” was not quoted in Jones for us to
compare to that used here.
      The 2017 COA from this court allowed consideration on remand of
alleged ineffective counsel that caused White to be told “that he had to go to
trial in order to challenge” an enhancement for his role in the offense, and that
failed to advise White “that he risked losing credit for acceptance of
responsibility if he did not plead guilty prior to trial.” Both of those ineffective-
assistance claims insist that better advice would have caused him to accept the
offered plea bargain.
      Of course, plea bargaining is a process in which counsel for a criminal
defendant negotiates with the prosecution in pursuit of a mutually agreeable
bargain. A criminal defendant is entitled to effective counsel during those
negotiations. See Missouri v. Frye, 

, 144 (2012). White’s claim is
based on a factual predicate that he needed to be informed of the benefits of
rejecting a bargain, while the COA is for deficiencies of counsel that failed to
inform him of harms from rejecting a bargain.
      White argues that the open-plea claim sufficiently relates to the claims
that are clearly within the scope of the COA and relies on two of this court’s
opinions. One concerned a COA that had been granted “on the issues whether
trial counsel failed to advise [the defendant] about his appellate rights and
whether counsel failed to file a notice of appeal as requested by” the defendant.
United States v. Camargo, 119 F. App’x 670, 671 (5th Cir. 2005).                The
government had argued that the COA did not reach the issue of counsel’s
possible failure to consult the defendant about whether the defendant wished
to appeal.

that the differences among the issues were mere
“nuance”; all were “sufficiently interrelated” to consider.

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unpublished opinion and therefore is nonprecedential. In any event, that
decision is consistent with our result here as the difference between bad advice
causing a rejection of a plea bargain and bad advice failing to explain the
existence of an option to reject the bargain is not nuanced.
      White also relies on a decision in which a COA was granted on the claim
that the defendant’s counsel on direct appeal should have presented certain
issues about discrimination in jury selection. Higgins v. Cain, 

,
260 (5th Cir. 2013). Then, once in this court, a new claim was raised that
counsel was ineffective because of a failure to obtain a transcript of the jury
voir dire.

. We held that even if the issues identified in the COA did
not mention a transcript, acquiring one would be irrelevant without the jury-
selection issues identified in the COA.

n.14. The transcript issue
was not so much new as it was a means to resolve what was already presented.
      Based on these two cases, White contends the open-plea argument is
sufficiently related because an “open plea is of a piece with advising that the
only way to challenge the enhancement was by standing trial,” and similarly,
that Linder’s failing to advise White of “his right to plead open is of ‘no moment’
absent [Linder’s] advising” White that the only way to challenge the role
enhancement is to stand trial.
      We conclude that the COA is explicitly limited to ineffectiveness that led
to rejection of the offered plea bargain. The argument about advice concerning
an open plea is not sufficiently related.      Nonetheless, we briefly analyze
whether, even if the COA would permit the argument, White has shown
prejudice by not being informed about open pleas.
      B.    Prejudice
      If this issue were within the scope of the COA, White would have to show
that Linder’s failure to provide advice about open pleas was constitutionally
deficient and that White was prejudiced. 

–88. “If
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it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, which we expect will often be so, that course should be
followed.”

We will examine only the issue of prejudice.
      Prejudice in this context includes showing that but for Linder’s failure
to advise, there is a reasonable probability that White would have entered an
open guilty plea before trial. See 

. According to White,
his testimony shows that “he would have pleaded guilty without an agreement
before trial if he had known of that option.” White also discusses a letter that
he wrote before trial to the prosecutor that White now says indicated he “was
willing to plead guilty if he could do so without stipulating to the sentencing
enhancements the Government sought.” The letter actually states he was
willing to plead to one count if the prosecutor would be “willing to drop the
leadership role and the gun enhancement.” That is not showing interest in an
open plea; it is pursuing a bargain.
      There is additional evidence shedding light on the possibility White
would have made an open plea had he only known of it. Linder testified that
White “was adamant about wanting to go to trial,” and that White told him,
“I’m not going to plead, I want to go to trial, [Russell’s] not going to testify
against me.” Russell testified that one month before trial, White wrote a letter
telling her not to testify against him, but urging that if she did, to lie and testify
that White ingested the pseudoephedrine pills instead of using them to
manufacture methamphetamine, which he thought would undermine both
charges brought against him. There was ample evidence that White was
unconcerned about Russell as a witness and thought he could win at trial.
      White cannot show a reasonable probability that he would have entered
an open guilty plea before trial. Thus, any ineffectiveness of counsel in failing
to explain open pleas could not have prejudiced him.
      AFFIRMED.
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