The Government wins.
Higginbotham wrote the opinion. It has a long statement of facts, including twice stating that Backstrom lied under oath about conversations with Balducci (and, in doing so, accepting Balducci’s account). These statements are not couched in terms of the scope of review but more as factual observation– the court notes that the phone records show that the calls occurred, corroborating Balducci’s account. There’s one factual mistake, I think– the court notes that Langston was arrested December 10, 2007. I don’t think that is so (his office was search about then).
The opinion rejects the jurisdiction argument as not properly raised, but then goes on to reject it on the merits, noting that there is a difference between raising failure of the facts to show jurisdiction before and after judgment. The court looks to the indictment without going behind it (what I thought would be the result) and rejects the argument.
The court rejects the ineffectiveness argument by ruling that there is no showing Zach was harmed by any conflict, and the argument of prosecutorial misconduct by ruling that Zach did not show the comment from the prosecutor induced him to plea. Finally, because the other claims fail on merits, the court took the view that it did not have to reach the question of Zach’s actual innocence, although the facts they state suggest it would not have helped Zach had they decided they needed to answer that question.
The Fifth Circuit opinion is here. More about it later.