IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-40229

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee 

v.

JAMES BAYLOUS WHITE, also known as Buck White, 

 Defendant - Appellant

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 4:13-CV-166

Before DENNIS, SOUTHWICK, and HO, Circuit Judges.

PER CURIAM:*

A federal inmate filed a motion for relief from his conviction based on his 

counsel’s failure to advise him about the availability of the option of an open 

plea. The district court denied relief. We AFFIRM.

FACTUAL AND PROCEDURAL BACKGROUND

In January 2010, a federal grand jury in the Eastern District of Texas, 

Sherman Division, indicted James Baylous White on two counts of conspiracy 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

September 21, 2020

Lyle W. Cayce

Clerk

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to manufacture, distribute, or possess with intent to manufacture or distribute 

methamphetamine and pseudoephedrine. The Government offered a plea 

agreement through which White would plead guilty to Count One concerning 

methamphetamine and stipulate that he “was an organizer, leader, manager 

or supervisor,” making United States Sentencing Guidelines Section 3B1.1(c)

applicable. In return, the Government would dismiss Count Two and agree

that a three-level reduction for acceptance of responsibility would apply. White 

did not accept the offer, and the case proceeded to trial on both counts.

At trial, the Government called White’s girlfriend, Bertha Mae Russell,

as a witness. Russell had pled guilty to an offense and agreed to cooperate 

with the Government by testifying against White. Apparently, the testimony 

was unexpected and sufficiently compelling that White decided to change his 

plea. White pled guilty to Count Two of the indictment without the benefit of 

a written plea agreement, and the Government dismissed Count One. 

At the sentencing hearing, White objected to the Presentence Report 

(“PSR”). White first objected to a two-level enhancement under Guidelines

Section 2D1.11(b)(1) for possession of a dangerous weapon, and the district 

court overruled the objection. White also objected to a three-level enhancement 

under Section 3B1.1(c) for his supervisory role in the offense, and the district 

court again overruled the objection. The district court also held White was not 

eligible for a reduction for acceptance of responsibility because he did not enter 

his guilty plea until after his jury trial had begun.

The district court imposed a 240-month term of imprisonment followed 

by three years of supervised release. White’s direct appeal was unsuccessful. 

See United States v. White, 495 F. App’x 549, 552 (5th Cir. 2012). 

White filed for post-conviction relief, claiming that his trial counsel, 

Phillip Linder, provided ineffective assistance. See 28 U.S.C. § 2255. Relevant 

to this appeal is White’s claim that he rejected the plea offer based on Linder’s

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inaccurate advice during plea negotiations that a three-level enhancement 

could not be applied to him under the law, and that White had to go to trial to 

challenge any sentencing enhancement. White also asserted that Linder had 

not informed White that he could lose credit for acceptance of responsibility if 

White went to trial. White contended that he would have accepted the plea 

offer but for the alleged incorrect advice. 

The district court denied the Section 2255 motion. This court granted a 

Certificate of Appealability (“COA”) on two of White’s claims: whether Linder’s

inaccurate advice caused White to reject the plea offer, and relatedly, whether 

the district court abused its discretion in denying relief on this claim without 

holding an evidentiary hearing. Later, we vacated the district court’s 

judgment in part and remanded to the district court for proceedings on the 

ineffective assistance claim. See United States v. White, 715 F. App’x 436, 438 

(5th Cir. 2018).

A magistrate judge conducted an evidentiary hearing on remand. Linder 

testified that after he negotiated a plea offer and then reviewed the offer with 

his client, White “was adamant about wanting to go to trial.” White did not 

believe that his girlfriend, Russell, would testify against him, and based on 

that belief, White did not think that the Government could establish his guilt. 

Linder denied that he had told White that a leadership role enhancement 

could not be applied, and Linder also denied that he had told White that it was 

necessary to go to trial to challenge the role enhancement. Linder explained 

to White that sentencing enhancements could be challenged in objections to 

the PSR, but White did not want to plead guilty and admit that a role 

enhancement should be applied. Linder also advised White that he would lose 

credit for acceptance of responsibility if White went to trial. 

During Linder’s testimony, White’s counsel introduced a letter White 

had written to the Government’s attorney. In the letter, White stated he was 

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willing to plead guilty if the Government would “drop the leadership role and 

the gun enhancement” and provide its assurance that these enhancements 

“will not be used by the probation officer.” Linder testified that the 

Government provided him with a copy of the letter during his representation 

of White, but Linder knew that the Government would not agree to abandon 

the role enhancement and that the Government would argue at sentencing 

that the gun enhancement applied. 

White testified that Linder never told him he would not receive credit for 

acceptance of responsibility if he went to trial; in fact, Linder never discussed 

acceptance of responsibility with him at all. If Linder had done so, White would 

have accepted the plea offer even though he did not want to stipulate to the 

role enhancement. White testified he went to trial solely to challenge the role 

enhancement, believing it was the only way to make that challenge, and White

decided to plead guilty after Russell gave testimony that supported the role 

enhancement. White further testified that Linder did not explain the 

differences between what would happen if White did or did not plead guilty. 

The magistrate judge issued a report finding that (1) White would not 

have accepted the plea offer, “regardless of what he was told about the plea 

agreement”; (2) White wanted to go to trial and did not believe Russell would 

testify against him; (3) White had failed to show deficient performance on the 

part of Linder; and (4) Linder reviewed the terms of the plea agreement with 

White, but White was not interested in the details of the agreement, as he had 

already decided to reject the plea offer. The magistrate judge recommended 

that the Section 2255 motion be denied. 

White filed timely objections, but the district court adopted the report 

and recommendation. The court dismissed the Section 2255 motion but 

granted a COA “with respect to the claim that counsel’s deficient performance 

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caused [White] to reject the Government’s pre-trial plea offer.” White timely 

appealed. 

DISCUSSION

White was represented by counsel in the Section 2255 proceedings in 

district court but filed a pro se notice of appeal and appellate brief. He contends

the district court erred in denying him relief for these defects in his counsel’s 

assistance: (1) failing to advise White that he would not receive credit for 

acceptance of responsibility if White went to trial; (2) erroneously advising 

White that he had to go to trial to challenge the role enhancement; and 

(3) failing to advise White of the possibility of entering an open plea. We 

consider the first two arguments together because they are within the scope of 

the COA. White’s third argument will be treated separately because of a

threshold issue of whether the COA allows us to resolve it.

I. Whether trial counsel’s deficient performance caused White to reject the 

Government’s plea offer

On appeal from a district court’s grant or denial of a Section 2255 

application, we review that 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 ineffective assistance of counsel are mixed questions of law 

and fact, reviewed de novo. United States v. Phea, 953 F.3d 838, 841 (5th Cir. 

2020). Credibility determinations are factual findings, which are not clearly 

erroneous so long as the findings are plausible in light of the record as a whole. 

United States v. Montes, 602 F.3d 381, 384 (5th Cir. 2010).

An attorney renders constitutionally ineffective assistance if his 

performance falls below an objective standard of reasonableness; that deficient 

performance also must prejudice the client. Strickland v. Washington, 466 

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U.S. 668, 687–88 (1984). For prejudice, White “must show that there is a 

reasonable probability that, but for counsel’s unprofessional errors, the result 

of the proceeding would have been different. A reasonable probability is a 

probability sufficient to undermine confidence in the outcome.” Id. at 694. A 

failure to establish either deficient performance or prejudice defeats the claim. 

Id. at 697. When a defendant like White contends that counsel’s deficient 

performance caused the defendant to reject a plea offer, the Strickland

prejudice inquiry requires the defendant to show that: (1) but for counsel’s 

ineffective advice, there is a reasonable probability that the defendant would 

have accepted the plea; (2) the court would have accepted its terms; and 

(3) under the plea, the sentence would have been less severe than the one 

imposed. Lafler v. Cooper, 566 U.S. 156, 164 (2012).

White argues that the evidence shows that he was willing to accept the 

Government’s plea offer if Linder had properly advised him. At the evidentiary 

hearing on White’s claim for ineffective assistance of counsel, White testified 

that Linder failed to advise him that by going to trial, White would not receive 

credit for acceptance of responsibility. Linder testified to the contrary. The 

district court found Linder’s testimony more credible and determined that 

Linder indeed reviewed with White “the risk of losing credit for acceptance of 

responsibility by going to trial.” Because this factual finding is plausible in 

light of the record as a whole, it is not clearly erroneous. See Montes, 602 F.3d 

at 384. White has therefore failed to show that Linder performed deficiently 

by failing to advise him that he would lose the credit for acceptance of 

responsibility by going to trial. 

White next argues that Linder erroneously advised that the only choices 

were to accept the plea offer or, if White wanted to challenge the role 

enhancement, to go to trial. According to White, the record shows that he 

would have accepted a plea deal had he been properly advised. The district 

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court did not address the factual question of what choices were described by 

his counsel. The court did determine, though, that White “was not going to 

accept the plea offer, regardless of what he was told about the plea agreement.” 

In view of the testimony that Linder informed White about the plea agreement 

but that White was adamant about going to trial in part because he did not 

believe Russell would testify against him, the district court’s factual 

determination is plausible and not clearly erroneous. See Montes, 602 F.3d at 

384. White thus fails to establish prejudice because he has not shown that, but 

for Linder’s deficient advice, there is a reasonable probability that White would 

have accepted the plea offer. 

II. Whether White’s trial counsel was ineffective for failing to advise White of 

the possibility of entering an open plea

White’s third argument of ineffective assistance of counsel is that Linder 

failed to advise him of the possibility of entering an open plea. An open plea is 

a guilty plea made by a criminal defendant without the benefit of a plea 

agreement offered by the government. We first must consider whether this 

argument is within the scope of the COA granted by the district court. This 

court determined that this issue would benefit from assistance of pro bono

counsel. Attorney Paulette C. Miniter agreed to serve in that capacity. We 

thank her for able assistance to her client and this court. Her supplemental 

brief addressed “whether the claim that trial counsel was deficient in failing to 

advise Appellant of his right to enter an open plea falls within the grant of the 

[COA], and, if so, the merits of this claim.” The Government submitted a 

response. We first address the scope of the COA.

A. Claims covered by the Certificate of Appealability

We will not consider claims that exceed the scope of issues on which a 

COA is granted. United States v. Kimler, 150 F.3d 429, 430–31 (5th Cir. 1998). 

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If a party expressly seeks a COA on additional issues, which White has not 

done, this court may certify those issues if the party meets the requirements 

for a COA. See id. at 431. Thus, we first consider whether the open-plea claim 

is within the scope of the COA granted by the district court.

We begin with a review of the procedural history of White’s Section 2255 

motion. In the motion, White alleged Linder told him that “the only way to 

challenge any enhancement at sentencing is” to go to trial, and Linder “did not 

inform [him] that he could lose the ‘acceptance of responsibility’ credit” if he 

went to trial. White claimed that “[b]ut for [Linder’s] incorrect advice, [he] 

would have accepted the plea offer made by the Government.” White did not 

explicitly reference in the motion the now-raised open-plea argument. 

On March 31, 2016, the district court denied the motion. In this court’s 

order of May 30, 2017, we summarized White’s argument, then stated that “a 

COA is GRANTED on this ineffective assistance claim, as well as on the related 

issue” of whether to have an evidentiary hearing. Our order stated that the 

claim

concerns the advice provided by counsel in connection with a 

proposed pretrial plea bargain, which, among other provisions, 

called for him to receive an enhancement for his role in the offense 

and for him to receive credit for acceptance of responsibility. White 

asserts that he was erroneously advised by counsel that a role 

enhancement could not be applied under the law, but that he had 

to go to trial in order to challenge the enhancement. He further 

asserts that counsel failed to advise him that he risked losing 

credit for acceptance of responsibility if he did not plead guilty 

prior to trial. 

We issued an opinion on the COA on March 22, 2018, in which we remanded 

for “further proceedings on the ineffective-assistance claim on which the COA 

was granted.” White, 715 F. App’x at 438. 

Because the authority given to the district court for the remand was to 

consider further the matters within the reach of the COA, that is the limit of 

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what the district court could decide. See United States v. Lee, 358 F.3d 315, 

321 (5th Cir. 2004). This limitation arises from the “mandate rule,” which,

“[a]bsent exceptional circumstances, . . . bars litigation of issues decided by the 

district court but foregone on appeal or otherwise waived, for example because 

they were not raised in the district court.” Id.

It was not until counsel was appointed for White on remand that the 

issue of Linder’s failure to advise White of the option of an open plea was 

raised. The issue was first mentioned at the evidentiary hearing when White’s 

new counsel questioned White about whether Linder advised White of an open 

plea option and whether White would have entered such a plea if White had 

been advised. 

The magistrate judge’s report did not discuss the testimony about an 

open plea or otherwise address the issue. White objected to the report and 

recommendation, emphasizing his open-plea argument. The district court 

adopted the magistrate judge’s report and concluded, without elaboration, that 

White’s objections were unmeritorious. It granted a COA “with respect to the 

claim that counsel’s deficient performance caused Movant to reject the 

Government’s pre-trial offer.” In light of the mandate rule, that new COA 

cannot include any issue that this court did not remand to the district court. 

Id. The new COA could be narrower, but in light of the district court’s similar,

if more succinct, language, we will apply the language of our 2017 COA order

but without the issue of an evidentiary hearing being again before us.

White argues that the COA permits his open-plea argument because he 

made the argument before the district court, and the court later granted a COA 

on ineffective assistance of counsel relating to rejection of the Government’s 

plea offer that did not detail any specific parts of that argument. White cites 

one of our opinions which held that because a district court granted a COA that 

used “broad, general language” instead of a specific list of issues for which the

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ineffective assistance claim was granted, the COA “effectively permit[ted]” all 

claims of ineffective assistance. Jones v. Cain, 227 F.3d 228, 230 (5th Cir. 

2000). The “broad, general language” was not quoted in Jones for us to

compare to that used here. 

The 2017 COA from this court allowed consideration on remand of 

alleged ineffective counsel that caused White to be told “that he had to go to 

trial in order to challenge” an enhancement for his role in the offense, and that 

failed to advise White “that he risked losing credit for acceptance of 

responsibility if he did not plead guilty prior to trial.” Both of those ineffectiveassistance claims insist that better advice would have caused him to accept the 

offered plea bargain.

Of course, plea bargaining is a process in which counsel for a criminal 

defendant negotiates with the prosecution in pursuit of a mutually agreeable 

bargain. A criminal defendant is entitled to effective counsel during those 

negotiations. See Missouri v. Frye, 566 U.S. 134, 144 (2012). White’s claim is 

based on a factual predicate that he needed to be informed of the benefits of 

rejecting a bargain, while the COA is for deficiencies of counsel that failed to 

inform him of harms from rejecting a bargain. 

White argues that the open-plea claim sufficiently relates to the claims 

that are clearly within the scope of the COA and relies on two of this court’s 

opinions. One concerned a COA that had been granted “on the issues whether 

trial counsel failed to advise [the defendant] about his appellate rights and 

whether counsel failed to file a notice of appeal as requested by” the defendant. 

United States v. Camargo, 119 F. App’x 670, 671 (5th Cir. 2005). The 

government had argued that the COA did not reach the issue of counsel’s 

possible failure to consult the defendant about whether the defendant wished 

to appeal. Id. The court held that the differences among the issues were mere 

“nuance”; all were “sufficiently interrelated” to consider. Id. Camargo is an 

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unpublished opinion and therefore is nonprecedential. In any event, that 

decision is consistent with our result here as the difference between bad advice

causing a rejection of a plea bargain and bad advice failing to explain the 

existence of an option to reject the bargain is not nuanced.

White also relies on a decision in which a COA was granted on the claim 

that the defendant’s counsel on direct appeal should have presented certain

issues about discrimination in jury selection. Higgins v. Cain, 720 F.3d 255, 

260 (5th Cir. 2013). Then, once in this court, a new claim was raised that 

counsel was ineffective because of a failure to obtain a transcript of the jury 

voir dire. Id. at 261. We held that even if the issues identified in the COA did 

not mention a transcript, acquiring one would be irrelevant without the juryselection issues identified in the COA. Id. at 261 n.14. The transcript issue 

was not so much new as it was a means to resolve what was already presented.

Based on these two cases, White contends the open-plea argument is 

sufficiently related because an “open plea is of a piece with advising that the 

only way to challenge the enhancement was by standing trial,” and similarly, 

that Linder’s failing to advise White of “his right to plead open is of ‘no moment’ 

absent [Linder’s] advising” White that the only way to challenge the role 

enhancement is to stand trial. 

We conclude that the COA is explicitly limited to ineffectiveness that led 

to rejection of the offered plea bargain. The argument about advice concerning 

an open plea is not sufficiently related. Nonetheless, we briefly analyze

whether, even if the COA would permit the argument, White has shown 

prejudice by not being informed about open pleas.

B. Prejudice

If this issue were within the scope of the COA, White would have to show 

that Linder’s failure to provide advice about open pleas was constitutionally 

deficient and that White was prejudiced. Strickland, 466 U.S. at 687–88. “If 

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it is easier to dispose of an ineffectiveness claim on the ground of lack of 

sufficient prejudice, which we expect will often be so, that course should be 

followed.” Id. at 697. We will examine only the issue of prejudice.

Prejudice in this context includes showing that but for Linder’s failure 

to advise, there is a reasonable probability that White would have entered an 

open guilty plea before trial. See Cooper, 566 U.S. at 164. According to White, 

his testimony shows that “he would have pleaded guilty without an agreement 

before trial if he had known of that option.” White also discusses a letter that 

he wrote before trial to the prosecutor that White now says indicated he “was 

willing to plead guilty if he could do so without stipulating to the sentencing 

enhancements the Government sought.” The letter actually states he was

willing to plead to one count if the prosecutor would be “willing to drop the 

leadership role and the gun enhancement.” That is not showing interest in an 

open plea; it is pursuing a bargain.

There is additional evidence shedding light on the possibility White 

would have made an open plea had he only known of it. Linder testified that 

White “was adamant about wanting to go to trial,” and that White told him,

“I’m not going to plead, I want to go to trial, [Russell’s] not going to testify 

against me.” Russell testified that one month before trial, White wrote a letter 

telling her not to testify against him, but urging that if she did, to lie and testify 

that White ingested the pseudoephedrine pills instead of using them to 

manufacture methamphetamine, which he thought would undermine both 

charges brought against him. There was ample evidence that White was 

unconcerned about Russell as a witness and thought he could win at trial.

White cannot show a reasonable probability that he would have entered 

an open guilty plea before trial. Thus, any ineffectiveness of counsel in failing 

to explain open pleas could not have prejudiced him.

AFFIRMED.

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