United States v. Smith

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 4, 2003
• Docket: 02-50620
• Status: Unpublished

Opinion

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.

-------------------- 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 -------------------- 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.