United States Court of Appeals

for the Fifth Circuit

No. 18-60530

Summary Calendar

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opinion should not be published and is not precedent except under the limited 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.

United States Court of Appeals

Fifth Circuit

FILED

May 18, 2022

Lyle W. Cayce

Clerk

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No. 18-60530

2

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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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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