United States v. Mackie ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-30446
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
THOMAS S. MACKIE, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
(97-CV-1302-T)
March 30, 1999
Before HIGGINBOTHAM, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Thomas S. Mackie, Jr., federal prisoner
#23922-034, seeks a certificate of appealability (COA) to appeal
the district court’s denial of his 28 U.S.C. § 2255 motion. A COA
may be issued only if the movant has made a substantial showing of
the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2).
We resolve doubts about whether to grant a COA in favor of the
movant. See Fuller v. Johnson, 114 F.3d 491, 495 (5th Cir.), cert.
denied, 118 S. Ct. 399 (1997).
*
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that this opinion should not be published and is not precedent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.
I.
FACTS AND PROCEEDINGS
After a jury convicted him of one count of money-laundering
(Count 18) of an 18-count indictment, Mackie entered into a plea
bargain with the government in which he agreed to plead guilty to
four more counts in exchange for the government’s agreement to
dismiss the remaining counts against him. In the pertinent part of
the plea agreement, Mackie waived his right, under 18 U.S.C. §
3742, to appeal his conviction on Count 18 or his sentence on any
count. He “also agree[d] not to contest his sentence, or the
manner in which it was determined, in any post-conviction
proceeding, such as one under 28 U.S.C. § 2255.”
Mackie subsequently filed a § 2255 motion, alleging that he
was denied effective assistance of counsel at his jury trial on
Count 18 and challenging his conviction on Count 18 on the basis of
insufficiency of the evidence and fraud on the court by the
government. The district court determined that in his plea
agreement Mackie waived his right to challenge, in a § 2255
proceeding, everything other than his ineffective assistance of
counsel claims.1 On appeal, Mackie argues that he did not waive
his right to challenge his conviction on Count 18 in a § 2255
proceeding and that the district court erred in concluding he did.
1
A defendant can waive his right to attack his conviction
in a 28 U.S.C. § 2255 proceeding; however, such a waiver may not
always apply if the collateral attack is based on ineffective
assistance of counsel. United States v. Wilkes, 20 F.3d 651, 653
(5th Cir. 1994).
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II.
ANALYSIS
A. COA
If Mackie is to obtain a COA on the district court’s dismissal
based on waiver in the plea-agreement —— an issue not of
constitutional dimension —— Mackie must first make a credible
showing of error by the district court. See Murphy v. Johnson, 110
F.3d 10, 11 (5th Cir. 1997) (applying COA standard to
nonconstitutional issue of exhaustion of state remedies). Only if
Mackie makes such a showing will we consider whether his underlying
claim satisfies the COA standard. Whitehead v. Johnson, 157 F.3d
384, 386 (5th Cir. 1998).
We construe Mackie’s plea agreement with the government by
applying legal principles governing the interpretation of
contracts. See United States v. Moulder, 141 F.3d 568, 571 (5th
Cir. 1998) (“[p]lea agreements are contractual in nature, and are
to be construed accordingly”); United States v. Asset, 990 F.2d
208, 215 & n.6 (5th Cir. 1993). Mackie waived his right to
challenge his conviction and sentence on direct appeal; however, as
to his right to institute post-conviction collateral challenges, he
waived only as to his sentence; there was no mention of his
conviction in this regard. Under the plain language of the
agreement and the maxim inclusio unius est exclusio alterius,
Mackie did not waive his right to challenge his conviction on Count
18 in a § 2255 proceeding. The government could have required him
to do so, but did not. Mackie has thus made a credible showing
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that the district court erred in concluding that he waived his
right to raise all claims regarding his conviction, except for
ineffective-assistance-of-counsel, in a § 2255 motion.
Nevertheless, if we were to proceed to the second step of the
Murphy test at this juncture, we would be acting prematurely. The
district court has not addressed either Mackie’s underlying
challenges to his conviction or whether review of those issues is
otherwise precluded. A prerequisite of appellate jurisdiction is
that the district court deny a movant a COA on an issue before that
movant may request one from us. See Whitehead, 157 F.3d at 387-88.
We therefore grant a COA on the question whether in his plea
agreement Mackie waived his right to raise a post-conviction
challenge to his conviction on Count 18, which question was
indisputably resolved by Mackie’s COA application and the record;
and we vacate the judgment of the district court denying COA on
grounds of waiver and remand to that court to consider the
substance of Mackie’s habeas claims, see id. at 388, except for his
claim of ineffective assistance of counsel, which we now proceed to
discuss.
B. Ineffective Assistance of Counsel
Mackie also contends that he was denied effective assistance
of counsel. He bases this claim on trial counsel’s failure to
argue for a jury instruction on entrapment during the trial on
Count 18.2 Mackie makes no attempt to show, however, that there
2
Mackie does not raise on appeal any of his other
allegations of ineffective assistance of counsel. Accordingly,
these issues have been waived on appeal. See Brinkmann v. Dallas
4
was “sufficient evidence from which a reasonable jury could find
entrapment.” See United States v. Bradfield, 113 F.3d 515, 520-21
(5th Cir. 1997); Mathews v. United States, 485 U.S. 58, 62 (1988).
Neither has he demonstrated that counsel’s tactics —— to finesse an
entrapment defense and focus instead on the absence of proof of the
elements of the offense —— was outside the realm of reasonable
trial strategy. See Strickland v. Washington, 466 U.S. 668, 687
(1984); Bridge v. Lynaugh, 838 F.2d 770, 773 (5th Cir. 1988) (in
evaluating ineffective-assistance claims, we indulge in “a strong
presumption” that counsel’s representation fell “within the wide
range of reasonable professional competence, or that, under the
circumstances, the challenged action `might be considered sound
trial strategy.’”). As Mackie has failed to make a substantial
showing of the denial of a constitutional right regarding his
ineffective assistance of counsel claim, we deny a COA on this
issue. See § 2253(c)(2).
COA DENIED IN PART AND GRANTED IN PART; JUDGMENT VACATED AND CASE
REMANDED.
County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987)
(issues which are not briefed are waived).
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