     Case: 18-10610      Document: 00515186902         Page: 1    Date Filed: 11/05/2019




           IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit


                                      No. 18-10610
                                                                              FILED
                                                                       November 5, 2019
                                                                         Lyle W. Cayce
UNITED STATES OF AMERICA,                                                     Clerk

              Plaintiff - Appellee

v.

CHARLES RAY HOOPER,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:16-CV-756


Before OWEN, Chief Judge, and HAYNES and COSTA, Circuit Judges.
PER CURIAM:*
       Charles Ray Hooper filed a motion for postconviction relief seeking to
vacate his federal conviction for conspiring to deal methamphetamine. The
district court denied the motion, concluding that the claims Hooper raised were
the same claims he had unsuccessfully raised on direct appeal. This court
granted Hooper a certificate of appealability (COA) on his claim that his plea
was involuntary because the government failed to produce exculpatory


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-10610
evidence. The COA stated that “reasonable jurists could debate whether the
district court correctly concluded that this claim is procedurally barred.” But
in his subsequent brief, Hooper did not address the procedural bar, focusing
only on the merits of this claim.    Because Hooper failed to challenge the
procedural bar ruling, and in any event that ruling was correct, we AFFIRM.
                                      I.
      Hooper pleaded guilty to the drug offense in May 2014. He admitted that
he supplied drugs to, among others, Brittany Ann Barron and Jimmy Sparks.
His presentence report calculated a drug quantity of 5.82 kilograms of
methamphetamine, including ten ounces to Barron and 4.98 kilograms to
Sparks. Those numbers came from a report summarizing a January 2014
interview with Barron. Hooper objected to the 4.98 kilograms associated with
Sparks.
      In August 2014, between Hooper’s guilty plea and sentencing, his
counsel sent Barron a letter asking about the 4.98 kilograms she purportedly
said Hooper sold to Sparks. Barron replied that she told authorities she had
seen Hooper sell Sparks only up to four ounces of methamphetamine and that
she had purchased one ounce from him on five occasions. She also stated that
officers re-interviewed her in May 2014, and during the interview she
confirmed these lower quantities and disputed the higher ones.
      At Hooper’s sentencing two months later, he called Barron to testify. She
repeated what she had told Hooper’s lawyer: During her January and May
interviews, she had never given the 4.98-kilogram figure. Barron contended
that the authorities had accused her of changing her story in May and that
they had recorded “something different than what was the truth” in the
original summary of her interview. The government maintained that Barron’s
story had not changed and that it had never seen the letter she sent to defense
counsel. The district court sustained Hooper’s objection to the drug quantity
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                                       No. 18-10610
and sentenced him to 130 months based, in part, on reducing the drug quantity
linked to Sparks.
       Hooper appealed. He argued that his guilty plea was involuntary and
unknowing under Brady v. United States, 397 U.S. 742 (1970), because the
government failed to disclose that Barron, at her May interview, had disputed
ever attributing higher drug quantities to Hooper. Hooper also asserted claims
under Brady v. Maryland, 373 U.S. 83 (1963), Strickland v. Washington, 466
U.S. 668 (1984), and due process premised on the same alleged misconduct. 1
We affirmed Hooper’s conviction.
       Hooper then filed a section 2255 motion, raising the same arguments
based on the failure to disclose exculpatory sentencing information plus an
actual innocence claim. The district court concluded that, except for the actual
innocence claim, “[e]ach ground for relief presented . . . was raised on direct
appeal.” As a result, the court held that the previously raised claims were
procedurally barred.
       Our court’s COA grant authorized an appeal on only the Brady v. United
States claim concerning the plea’s validity. The order recognized that Hooper
had raised the claim on direct appeal but noted that “our opinion affirming his
conviction did not [directly] address it.” The COA grant thus concluded that
reasonable jurists could debate the procedural bar ruling as well as the merits
of the claim.




       1  The fact that Hooper relied on two different “Brady” cases from the Supreme Court
creates some confusion. Although there is some overlap between the issues (as Hooper
recognized on direct appeal by conceding that our caselaw foreclosed both claims), Hooper
treated them as distinct claims on both direct appeal and in his section 2255 motion. Hooper’s
Brady v. United States claim—the one before us—focuses on the voluntariness of the plea in
light of the failure to disclose exculpatory evidence. Hooper’s Brady v. Maryland claim was
about a more general right to exculpatory evidence.
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                                        II.
      Hooper’s counsel-drafted brief does not acknowledge, let alone challenge,
the procedural bar ruling. Hooper has thus abandoned this claim. Innova
Hosp. San Antonio, L.P. v. Blue Cross & Blue Shield of Ga., Inc., 892 F.3d 719,
732 (5th Cir. 2018) (“An appellant abandons all issues not raised and argued
in [his] initial brief on appeal.” (quotations omitted)). Failing to identify errors
in the district court’s analysis “is the same as if [Hooper] had not appealed th[e]
judgment” at all. See Brinkmann v. Dall. Cty. Deputy Sherriff Abner, 813 F.2d
744, 748 (5th Cir. 1987).
      Even if Hooper had not abandoned his challenge to the procedural bar
ruling, we would still reject his appeal. “[I]ssues raised and disposed of” on
direct appeal “are not considered in § 2255 [m]otions.” United States v. Kalish,
780 F.2d 506, 508 (5th Cir. 1986). This longstanding rule prevents the federal
postconviction review process from becoming “purposeless duplication” of the
direct appeal. Blackwell v. United States, 429 F.2d 514, 516 (5th Cir. 1970)
(per curiam). On direct appeal, Hooper argued that the government’s failure
to turn over exculpatory evidence about the drug quantity meant that his plea
was not valid. That claim was “Issue One” in his principal brief, receiving more
than eight pages of briefing; his reply brief also devoted more pages to the
“Brady v. United States” issue than any other. Hooper conceded, however, that
Fifth Circuit caselaw precluded his claim that “Pre-plea Misconduct Rendered
Hooper’s Plea Involuntary Under Brady v. United States.” See Matthew v.
Johnson, 201 F.3d 353 (5th Cir. 2000); see also Alvarez v. City of Brownsville,
904 F.3d 382, 392–94 (5th Cir. 2018) (en banc) (reaffirming the caselaw Hooper
cited in his brief on direct appeal as the reason for the concession).
      Although the panel that rejected Hooper’s direct appeal did not cite
Brady v. United States, it recognized Hooper’s argument “that his guilty plea
was unknowing and involuntary because the [g]overnment withheld
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exculpatory sentencing evidence regarding the amount of methamphetamine
for which he was accountable.” United States v. Hooper, 621 F. App’x 770, 770
(5th Cir. 2015) (per curiam), cert. denied, 136 S. Ct. 894 (2016). The panel then
acknowledged Hooper’s concession that his “argument [wa]s foreclosed by
circuit precedent.” Id. In affirming his conviction, the direct appeal panel thus
decided the claim Hooper is again raising—that the failure to turn over
information about the drug quantity evidence renders his plea invalid.
                                           ***
      The judgment is AFFIRMED.




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