Case: 17-30243 Document: 00515176107 Page: 1 Date Filed: 10/28/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 17-30243 October 28, 2019
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
GREGORY M. WARD, also known as Gregory Ward,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:16-CV-9527
Before DENNIS, GRAVES, and COSTA, Circuit Judges.
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
PER CURIAM:*
Gregory Ward pleaded guilty to possessing with intent to distribute 100
grams or more of heroin, for which he was sentenced to 236 months in prison.
He filed a motion seeking postconviction relief under 28 U.S.C. § 2255 on the
ground that his counsel was ineffective for erroneously informing him that he
could appeal the denial of a suppression motion even if he entered an
unconditional guilty plea. The district court denied the motion, concluding
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 17-30243
that Ward failed to show either deficient performance or prejudice under
Strickland v. Washington, 466 U.S. 668 (1984). The district court also denied
a certificate of appealability (COA).
Ward then sought authorization from this court to appeal the denial of
his section 2255 petition. A member of this panel denied a COA. The full
panel rejected Ward’s motion to reconsider that ruling.
Ward filed a petition for certiorari. In his response to the petition, the
Solicitor General conceded that “jurists of reason would find it debatable
whether petitioner was entitled to an evidentiary hearing on deficient
performance.” Memorandum for the United States, Ward v. United States,
Supreme Court No. 18-7439, at 3. As for prejudice, the Solicitor General stated
that “[b]oth the district court and the court of appeals analyzed whether
petitioner had established prejudice without the benefit of” the Supreme
Court’s decision in Lee v. United States, 137 S. Ct. 1958 (2017). Solicitor
General’s Ward Memorandum at 3. That decision, the Solicitor General
further explained, “provided additional guidance on prejudice in the context of
misadvice concerning guilty pleas, making clear that a court’s inquiry ‘focuses
on a defendant’s decisionmaking,’ and may properly take account of both the
objective rationality of accepting a plea and contemporaneous evidence
demonstrating that the defendant, rationally or not, would have rejected a plea
absent deficient advice.” Id. at 3–4 (quoting Lee, 137 S. Ct. at 1966). Based on
its belief that this new guidance from Lee postdated our court’s decision in this
case, the Solicitor General recommend that the Supreme Court grant the
petition, vacate our judgment, and remand for further consideration in light of
Lee. The Supreme Court followed that recommendation.
It turns out that Lee was not decided after we denied Ward a COA. Lee
issued on June 23, 2017. That was after the district court denied Ward’s
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No. 17-30243
petition (February 6, 2017), but before the COA was denied in our court (single
judge order on May 21, 2018; denial of reconsideration on July 27, 2018).
In any event, because the government has now conceded that Ward’s
showing on the deficient performance presents a debatable issue and the
Supreme Court concluded that prejudice should be assessed under Lee, we
conclude that this ineffective assistance of counsel claim “deserve[s]
encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484
(2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)).
Accordingly, a COA is granted on Ward’s claim that counsel provided
ineffective assistance by telling him that he could appeal the suppression
ruling even after entering an unconditional plea.
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