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United States v. Spear ( 2022 )


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  • Case: 18-60530     Document: 00516323714         Page: 1     Date Filed: 05/18/2022
United States Court of Appeals
for the Fifth Circuit                           United States Court of Appeals
Fifth Circuit
FILED
No. 18-60530                        May 18, 2022
Summary Calendar
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Philip Joseph Spear,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:17-CV-267
Before King, Costa, and Ho, Circuit Judges.
Per Curiam:*
Philip Joseph Spear appeals denial of his
    28 U.S.C. § 2255
     motion.
The district court concluded that Spear’s claims of ineffective assistance of
counsel were barred by the appeal waiver in his plea agreement. We granted
a COA on the issue whether the following claims of ineffective assistance of
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 18-60530      Document: 00516323714          Page: 2    Date Filed: 05/18/2022
No. 18-60530
counsel are barred by the appeal waiver: whether trial counsel failed to allow
Spear to review discovery materials, inform him of upcoming court
proceedings, seek a mental evaluation, interview Spear’s family members to
present evidence rebutting the negative character evidence, and object to the
restitution amount.
It is not clear that Spear’s briefed claims of ineffective assistance of
counsel fall outside the scope of the COA. See Lackey v. Johnson,
    116 F.3d 149
    , 151-52 (5th Cir. 1997). Because appeal waivers do not implicate this
court’s jurisdiction, we pretermit the issue here. See United States v. Story,
    439 F.3d 226
    , 230-31 (5th Cir. 2006). Because Spear’s appeal waiver
contains an explicit reservation of his right to raise claims of ineffective
assistance of counsel, the district court erred by concluding that the appeal
waiver barred such claims. See United States v. Bond,
    414 F.3d 542
    , 544 (5th
Cir. 2005). Thus, because the district court’s judgment may be affirmed on
any basis supported by the record, the appeal turns on whether Spear’s
claims of ineffective assistance of counsel were properly denied. See United
States v. Luyten,
    966 F.3d 329
    , 332 (5th Cir. 2020).
To establish a claim of ineffective assistance of counsel, Spear must
show that his counsel’s performance was deficient in that it fell below an
objective standard of reasonableness and that the deficient performance
prejudiced the defense. Strickland v. Washington,
    466 U.S. 668
    , 687 (1984).
A habeas petitioner has the burden of proving both prongs of the Strickland
test. Wong v. Belmontes,
    558 U.S. 15
    , 16 (2009). However, a defendant waives
any challenge to nonjurisdictional defects in the pre-plea proceedings by
entering a valid guilty plea, including ineffective assistance claims other than
those related to the validity of the plea. United States v. Palacios,
    928 F.3d 450
    , 455 (5th Cir. 2019).
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Case: 18-60530      Document: 00516323714           Page: 3    Date Filed: 05/18/2022
No. 18-60530
The claim that counsel was ineffective in failing to allow Spear to
review discovery was waived by his guilty plea. See
    id.
     His guilty plea also
constitutes a waiver of his claim that counsel failed to prepare him for
proceedings, to the extent that he complains about pre-plea proceedings. See
    id.
     To the extent that he complains about post-plea proceedings, he does not
explain what counsel should have said or done to prepare him or how it would
have changed the outcome of the proceeding. See Strickland,
    466 U.S. at 687
    .
Likewise, his guilty plea waived his claim that counsel was deficient for failing
to request a mental evaluation.        To the extent Spear challenges the
voluntariness of his plea based on competency, he does not allege or show
that he was incompetent at any relevant stage and does not explain why
counsel should have explored his mental health prior to his entry of a guilty
plea, and no other reason for such an investigation is apparent. See Miniel v.
Cockrell,
    339 F.3d 331
    , 345 (5th Cir. 2003). To the extent that he complains
about this failure in regard to post-plea proceedings, he has not shown that
counsel was put on notice of a mental or psychological condition. See
    id.
    Although Spear argues that counsel was ineffective in failing to
challenge the order of restitution, he does not provide a basis for challenging
the restitution amount or any allegations of prejudice resulting from such a
failure. See Wong,
    558 U.S. at 16
    ; Strickland,
    466 U.S. at 687
    . As for the claim
that trial counsel was ineffective in failing to call family members as character
witnesses, Spear does not identify the witnesses or offer evidence of their
proposed testimony and willingness to testify. See Harrison v. Quarterman,
    496 F.3d 419
    , 428 (5th Cir. 2007). Spear has failed to establish that he
received ineffective assistance of counsel.
The district court’s judgment is AFFIRMED.
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