United States v. Lincks

82 F.4th 325

UNITED STATES of America, Plaintiff—Appellee, v. Larry Ray LINCKS, Defendant—Appellant.

No. 21-10917

United States Court of Appeals, Fifth Circuit

FILED September 13, 2023

Appeal from the United States District Court for the Northern District of Texas, USDC No. 3:20-CV-1603, Jane J. Boyle, U.S. District Judge

Brian W. McKay, Esq., Assistant U.S. Attorney, Lindsey Diane Pryor, U.S. Attorney's Office, Northern District of Texas, Dallas, TX, for Plaintiff-Appellee.

Larry Ray Lincks, Beaumont, TX, Pro Se.

Before Smith, Southwick, and Higginson, Circuit Judges.

Jerry E. Smith, Circuit Judge:

Larry Lincks pleaded guilty, then filed a 28 U.S.C. § 2255 motion seeking relief from his plea. The district court denied the motion, and Lincks appeals.

This case reveals uncertainty in our caselaw regarding argument forfeiture, ineffective assistance of counsel ("IAC") in guilty pleas, and the nature of non-constitutional appeals in § 2255 proceedings.

After addressing and resolving those uncertainties, we affirm the denial of the § 2255 motion. We also clarify that COAs are unnecessary for objections to evidentiary rulings in § 2255 proceedings, but on the merits we reject Lincks's evidentiary challenge.

I.

Lincks pleaded guilty of possession with intent to distribute a mixture or substance containing a detectable amount of methamphetamine¹ and was sentenced to 188 months of imprisonment, to be served consecutively to any sentence imposed in two unrelated state proceedings, and three years of supervised release. We dismissed his appeal, and the Supreme Court denied certiorari. Lincks v. United States, — U.S. —, 139 S. Ct. 2731, 204 L.Ed.2d 1122(2019).

Lincks then filed a § 2255 motion, contending, among other things, that his attorney rendered IAC because (a) he failed to explain the presentence report ("PSR"), making the guilty plea unknowing and involuntary; (b) he failed to file a motion to suppress and dismiss evidence and failed to investigate; (c) he erroneously advised that Lincks's guideline range would be 60 to 72 months²; and (d) he failed to look at discovery materials, which led to a higher guideline range than expected.

Lincks submitted copies of e-mails between him and his counsel, Aaron Wiley, as exhibits. They revealed that shortly before Lincks signed his plea agreement, he e-mailed Wiley stating that he was concerned because he was facing twenty years of imprisonment and that he "[might] as well" go to trial if he was looking at that much time. Wiley responded that the statutory maximum was twenty years and had to be included in the plea agreement, but Lincks's sentence would not approach the statutory maximum given the drug quantity attributed to him and his criminal history consisting of two prior drug convictions.

About eight months later, following the plea and preparation of the PSR, Wiley stated in another e-mail that the guideline range in the PSR was "higher than expected" because Lincks had received more criminal history points and was held responsible for a higher drug quantity than expected. Counsel stated he would try to get a lower guideline range by making objections and would discuss the available options with Lincks. Lincks then told Wiley that the PSR incorrectly stated he had bought a pound of narcotics from a man named Tony; he denied saying that in his interview and asked counsel to listen to the taped interview.

In addition, Lincks filed two motions for discovery, which the magistrate judge denied. The district court denied Lincks's renewed motion for discovery, accepted the magistrate judge's report, and denied a certificate of appealability ("COA").

We, however, granted a COA on the issue of whether Lincks's trial counsel was ineffective in advising him about the guideline range, affecting his decision to plead guilty. Specifically, we stated, "Lincks has made the required showing as to his claim (1)(b) above, namely, that his trial counsel was ineffective in advising him about his sentencing guidelines range . . . ." But as the order listed Lincks's claims, claim (1)(b) was Wiley's "fail[ure] to file a motion to suppress and dismiss evidence and fail[ure] to investigate." Claim (1)(c) was the guidelines-advice claim. Apparently because of the discrepancy, Lincks's merits briefing focuses almost entirely on his evidentiary and failure-to-investigate claims.

We denied a COA on Lincks's other IAC claims and carried with the case his request for a COA on whether the district court abused its discretion by denying discovery.

II.

In an appeal from the denial of a § 2255 motion, this court reviews the district court's legal conclusions de novo and its factual findings for clear error. United States v. Cavitt, 550 F.3d 430, 435 (5th Cir. 2008). Claims of IAC are reviewed de novo. See United States v. Scott, 11 F.4th 364, 368 (5th Cir. 2021), cert. denied, — U.S. —, 142 S. Ct. 827, 211 L.Ed.2d 512 (2022). As for discovery, "[t]he district court's decision regarding [its] availability . . . is . . . committed to the sound discretion of the district court[ ] and is reviewed under the abuse of discretion standard." United States v. Fields, 761 F.3d 443, 478 (5th Cir. 2014) (second ellipsis in original) (quoting Clark v. Johnson, 202 F.3d 760, 765-66 (5th Cir. 2000)).

III.

There are three issues. First, whether Lincks forfeited his argument that Wiley was ineffective in advising him about his guideline range. The answer is no. Second, assuming that we reach the merits of Lincks's claim, whether he can prevail on it. Again, no. And third, whether Lincks is entitled to a COA on whether the district court abused its discretion by denying discovery. We reframe that last question to clarify our circuit's jurisprudence and answer it, as the others, in the negative.

A.

The government argues that Lincks forfeited the only issue for which we granted a COA, i.e., his guidelines-advice claim. Specifically, it points to his opening brief's conclusory statement that "he was given 'faulty and erroneous advice' at the plea stage." As noted, Lincks's briefing strategy was apparently the result of a typographical error in this court's grant of a COA: Our order referred to Lincks's "claim (1)(b)" rather than to "claim (1)(c)." Given the unusual circumstances of the case, we find no forfeiture.

"[P]ro se litigants, like all other parties, must abide by the Federal Rules of Appellate Procedure." United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994) (per curiam). "[W]hen [a criminal] appellant fails to . . . comply with the rules of the court, the clerk must dismiss the appeal for want of prosecution." 5TH CIR. R. 42.3.2. Our rules require an appellant to specify his arguments and support them "with citations to the authorities and parts of the record on which the appellant relies." FED. R. APP. P. 28(a)(8); 5TH CIR. R. 28.3(i). "Failure to satisfy the requirements of Rule 28 as to a particular issue ordinarily constitutes abandonment of the issue." United States v. Miranda, 248 F.3d 434, 443 (5th Cir. 2001) (citing United States v. Beaumont, 972 F.2d 553, 563 (5th Cir. 1992)).

On the other hand, "pro se briefs are afforded liberal construction." McCreary v. Richardson, 738 F.3d 651, 655 (5th Cir. 2013) (per curiam) (citing Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam)), as revised (Oct. 9, 2013). And "we must liberally construe briefs in determining what issues have been presented for appeal. Miranda, 248 F.3d at 444 (citing SEC v. Recile, 10 F.3d 1093 (5th Cir. 1993)).

Applying those legal principles to the facts here, there is no forfeiture. Lincks's confusion, which appears genuine and persists through his reply brief, stems from our order's inaccuracy in referring to Lincks's "claim (1)(b)" rather than the intended "claim (1)(c)." We will not punish Lincks for that, especially remembering that the rules of appellate procedure are meant to "promote the interest of justice." See 28 U.S.C. § 2073(b).

But even if Lincks had forfeited his argument, we would still consider it. "[T]he issues-not-briefed-are-[forfeited] rule is a prudential construct that requires the exercise of discretion." Miranda, 248 F.3d at 443. That discretion is appropriate here: Any forfeiture is at least partly attributable to this court's imprecision. We therefore proceed to the merits of Lincks's guidelines-advice claim.³

B.

Lincks asserts that Wiley provided IAC by erroneously underestimating his guideline range, making his guilty plea unknowing or involuntary.

To demonstrate IAC, Lincks must show (i) that his counsel's performance was deficient because it fell below an objective standard of reasonableness and (ii) that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 689-94, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A failure to establish either prong defeats the claim. Id. at 697, 104 S.Ct. 2052. We resolve the claim against Lincks on the first prong and therefore do not address the second.

To demonstrate deficiency, Lincks must show that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. 2052. The alleged error here is inaccurate advice concerning Lincks's exposure under the sentencing guidelines, which may have vitiated his knowledge of the consequences of the plea. In particular, for a guilty plea to be knowing, the defendant must have a "full understanding of what the plea connotes and of its consequence." Boykin v. Alabama, 395 U.S. 238, 244, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). At a minimum, a guilty plea's sentencing consequences include the maximum sentence for the offense charged. United States v. Hernandez, 234 F.3d 252, 255-56 (5th Cir. 2000) (per curiam).

We digress briefly to note that, at least under our caselaw, the "knowing" and "voluntary" requirements "embody different concepts." Id. at 255 n.3. Volition in guilty pleas comes...