United States v. Smith ( 2003 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-50620
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KIMBERLY S. SMITH,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-01-CV-403-OG &
SA-97-CR-263-4-OG
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February 3, 2003
Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Kimberly S. Smith, federal prisoner No. 82906-080, appeals
the district court’s denial of her 28 U.S.C. § 2255 motion
challenging her convictions for conspiracy to commit bank robbery
and aiding and abetting bank robbery. Smith’s § 2255 motion in
the district court raised various allegations of ineffective
counsel. Following the district court’s denial of her motion,
Smith sought a certificate of appealability (COA) on a single
*
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that this opinion should not be published and is not precedent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.
No. 02-50620
-2-
issue: whether her trial attorney was ineffective for giving
Smith erroneous advice concerning whether she should testify at
trial. The district court granted a COA as to that issue only.
Although Smith argues other issues in her appellate brief, she
has never requested a COA for any issue other than the validity
of counsel’s advice concerning whether Smith should exercise her
right to testify. Under these circumstances, our review is
limited to the issue on which the district court granted a COA.
United States v. Kimler, 150 F.3d 429, 430-31 & n.1 (5th Cir.
1998); Lackey v. Johnson, 116 F.3d 149, 151-52 (5th Cir. 1998).
The parties agree that Smith decided not to testify after
counsel advised her that, if she testified, the Government would
be able to impeach her testimony with prior false statements on
credit applications and with an identification document that
Smith obtained under an assumed name. Such documents would have
been admissible at trial because they are relevant to Smith’s
character for truthfulness or untruthfulness. United States v.
Parker, 133 F.3d 322, 327 (5th Cir. 1998); United States v.
Tomlin, 46 F.3d 1369, 1388-89 (5th Cir. 1995). As counsel did
not give Smith erroneous legal advice, she has failed to show
that the district court erred by denying § 2255 relief.
AFFIRMED.