United States v. Scott , 630 F. App'x 745 ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT October 20, 2015
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-8030
(D. Wyoming)
LAUREN ELIZABETH SCOTT, (D.C. Nos. 2:14-CV-00092-SWS and
1:12-CR-00058-SWS-2)
Defendant - Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before TYMKOVICH, Chief Judge, HARTZ, and BALDOCK, Circuit Judges.
Defendant Lauren Elizabeth Scott is in federal prison after pleading guilty to fraud
and money-laundering charges arising from a scheme in which she and others took
money from investors for “wind farm” projects that did not, in fact, exist. Proceeding pro
se, she seeks a certificate of appealability (COA) to appeal the denial of her motion for
relief under 28 U.S.C. § 2255. See 28 U.S.C. § 2253(c)(1)(B) (requiring COA to appeal
denial of relief under § 2255). We deny a COA and dismiss the appeal.
Because Ms. Scott is proceeding pro se, “we construe [her] pleadings liberally.”
Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003). But “the court cannot
take on the responsibility of serving as the litigant’s attorney in constructing arguments
and searching the record.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840
(10th Cir. 2005). And we have “repeatedly insisted that pro se parties follow the same
rules of procedure that govern other litigants.” Id. (internal quotation marks omitted).
We have done our best to accurately construe Defendant’s claims on appeal, a task made
formidable by her disorganized, vague, and rambling brief.
Several of Defendant’s apparent claims were not raised in district court and
therefore will not be considered: claims that her plea was involuntary, that her counsel
erroneously told her that she lacked grounds for appeal, and that her counsel failed to
challenge the court’s calculation of loss. See United States v. Viera, 674 F.3d 1214, 1220
(10th Cir. 2012) (“[A]s to issues that were not presented to the district court, we adhere to
our general rule against considering issues for the first time on appeal.”).
For the remaining claims, we can grant a COA “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This
standard requires “a demonstration that . . . includes showing that reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were adequate to deserve encouragement to
proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks
omitted). In other words, the applicant must show that the district court’s resolution of
the constitutional claim was either “debatable or wrong.” Id.Defendant raises several claims of ineffective assistance of counsel. To prevail
she must show that “counsel’s representation fell below an objective standard of
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reasonableness and that but for this ineffective assistance the result would have been
different.” Lasiter v. Thomas, 89 F.3d 699, 703 (10th Cir. 1996) (internal quotations
omitted). In this case Defendant could be asserting ineffective assistance with respect to
her plea or her sentence. We first address her plea.
“In the guilty plea context, to establish a claim for ineffective assistance of
counsel, a defendant must show that counsel’s performance fell below an objective
standard of reasonableness and that, but for counsel’s error, the defendant would have
insisted upon going to trial.” United States v. Silva, 430 F.3d 1096, 1099 (10th Cir.
2005). In her brief to this court, however, Defendant never explicitly alleges that, but for
errors by counsel, she would have insisted upon going to trial. Nonetheless, we will
address one possible claim. We very liberally construe her statement that her counsel
“never disclosed” to her the possibility of a guidelines sentencing level of 97–121
months’ imprisonment, Aplt. Br. at 20, as an effort to raise her district-court contention
that she would not have pleaded guilty had she known that she could have received a
lengthy sentence.
That contention has no merit. At her plea hearing Defendant acknowledged that
her counsel had informed her that she likely faced an “advisory guideline range of 108 to
135 months.” Tr. of Hr’g on Change of Plea at 19–20, United States v. Scott, No. 12-CR-
58 (D. Wyo. May 16, 2013). This alone undermines Defendant’s claim. As the Supreme
Court has written:
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[T]he representations of the defendant, his lawyer, and the prosecutor at
such a hearing, as well as any findings made by the judge accepting the
plea, constitute a formidable barrier in any subsequent collateral
proceedings. Solemn declarations in open court carry a strong presumption
of verity. The subsequent presentation of conclusory allegations
unsupported by specifics is subject to summary dismissal, as are
contentions that in the face of the record are wholly incredible.
Blackledge v. Allison, 431 U.S. 63, 73–74 (1977).
Further, even if Defendant’s counsel had misinformed her, “there is no prejudice
from counsel’s inaccurate sentence or parole predictions where the court cured the defect
by providing the proper information.” Lasiter, 89 F.3d at 703. Here, the court informed
Defendant at the plea hearing that her preliminary advisory guideline range was 108–135
months, that her actual range would not be calculated until sentencing, and that “to the
extent that that determination is contrary to your estimate or even this Court’s estimate
today, you would not be able to withdraw your plea of guilt.” R., Vol. 1 at 561–63.
Defendant affirmed her understanding, then pleaded guilty.
Turning to sentencing, an ineffectiveness claim with respect to sentencing requires
both deficient performance by the attorney and a resulting harsher sentence. See United
States v. Horey, 333 F.3d 1185, 1188 (10th Cir. 2003). Defendant first claims that her
counsel erred in failing to object to the presentence report. She claims that her “counsel
was ineffective in allowing her to be sentenced to information that was not only false, but
apparently fabricated.” Aplt. Br. at 7. For example, she claims that a map was “a key
factor in her presentence report, and was used to support a lengthy sentence.” Id. But
she does not explain how the map affected her sentence. And other than the reference to
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the map, her brief in this court does not recite what the false statements were. It merely
cross-references district-court pleadings, a practice prohibited by our rules. See 10th Cir.
R. 28.4 (“Incorporating by reference portions of lower court or agency briefs or pleadings
is disapproved and does not satisfy the requirements of Fed. R. App. P. 28(a) and (b).”);
Wardell v. Duncan, 470 F.3d 954, 963‒64 (10th Cir. 2006). Moreover, she has never
attempted to explain how the alleged errors in the presentence report could have
increased her sentence. Indeed, at her sentencing hearing she said that she had reviewed
the presentence report with her counsel and he had been able to answer all her questions.
Similarly, although Defendant “contends that no reasonable attorney would allow an
innocent client to be sentenced to enhancements the court found failed,” Aplt. Br. at 20,
her appellate brief does not list any specific enhancements.
Defendant also argues that the district court erred by not holding an evidentiary
hearing. It is unclear whether she is complaining of the lack of such a hearing before she
was sentenced, or the lack of a hearing on her § 2255 motion, or both. Regardless, she
has failed to set forth what purpose an evidentiary hearing would serve—what specific
facts would be elicited and why they would matter. She therefore is not entitled to relief
on this claim.
Defendant next argues that the district court improperly denied her § 2255 motion
without considering a supporting affidavit filed by her brother, codefendant Robert Reed.
Defendant contends that the affidavit and other unnamed “original documents” support
her claim of “actual innocence.” Id. at 2. We have reviewed the affidavit. At most it
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asserts that Defendant was unaware of the allegedly criminal activity. “[A]ctual
innocence is not an easy showing to make: To be credible, such a claim requires
petitioner to support his allegations of constitutional error with new reliable evidence.”
United States v. Cervini, 379 F.3d 987, 991 (10th Cir. 2004) (internal citation omitted).
Further, this evidence, “when contrasted with the corresponding evidence of guilt,” must
be “powerful enough to convince a court that no reasonable juror would have voted to
convict.” Id. at 992. Such “corresponding evidence of guilt” includes evidence from
“the proceedings that led to Defendant’s conviction,” id., which in this case includes
Defendant’s guilty plea. Under this standard the affidavit hardly suffices to support a
claim of actual innocence. See id. at 993 (“In the face of [Defendant’s admission in the
plea agreement], it simply is not probable that no reasonable juror would find him guilty
beyond a reasonable doubt—no matter what an expert might now say.”).
Finally, we reject Defendant’s argument that the district judge should have recused
himself. Defendant raised this claim below by joining Reed’s motion for disqualification.
Neither Defendant’s brief in this court nor the recusal motion provides a valid basis for
recusal. They complain primarily about the district court’s rulings. But “adverse rulings
are not in themselves grounds for recusal.” Glass v. Pfeffer, 849 F.2d 1261, 1268
(10th Cir. 1988). Second, to the extent that one can read Defendant to have alleged
extrajudicial bias—perhaps one could so classify the allegations that the district court
“protect[ed] misconduct” and “favor[ed] prosecutors over the public,” Mot. for
Disqualification or Recusal at 12, United States v. Reed, No. 12-CR-058-1-s (D. Wyo.
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May 7, 2015)—her allegations “are so lacking in particularity and substantiation as to fall
short of establishing the necessary factual predicate for any meaningful review.” United
States v. Cooley, 1 F.3d 985, 995 (10th Cir. 1993).
Defendant has not shown that a reasonable jurist could debate that the denial of
her § 2255 motion was mistaken. We DENY a COA and DISMISS the appeal. We
DENY all pending motions.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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