United States v. Sears , 294 F. App'x 383 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
September 17, 2008
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 08-3157
v. (D.C. Nos. 04-CR-10174-MLB-1 and
08-CV-01057-MLB)
BRUCE SEARS, (D. Kan.)
Defendant-Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before O’BRIEN, EBEL, and GORSUCH, Circuit Judges.
On December 6, 2004, Bruce Sears was convicted by a federal jury of four
counts of armed robbery and related charges stemming from the robbery of a Red
Lobster restaurant in Wichita, Kansas, and thereafter sentenced to life
imprisonment. On direct appeal, Mr. Sears challenged the district court’s order
denying his motion to suppress evidence under the Fourth Amendment. We
affirmed the district court’s denial of his motion. United States v. Sears, 2006
WL 2374330 (10th Cir. 2006). Mr. Sears then returned to the district court and
on February 25, 2008, filed a pro se habeas petition under 28 U.S.C. § 2255,
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
alleging various defects in his trial. To account for the fact that only one of the
issues had been raised on direct appeal, Mr. Sears asserted that his trial and
appellate attorneys’ performances had been constitutionally ineffective in failing
to present properly the remaining issues.
On March 13, 2008, the district court issued a 12-page memorandum and
order generally finding both attorneys effective but also directing, “[w]ith
extreme reluctance,” the government to produce two documents that Mr. Sears
“suspect[ed]” would prove that the government had failed to comply with its
Brady obligations. See Brady v. Maryland, 373 U.S. 83 (1963). The government
complied, and supplemented its production with a police department report to
provide context. After conducting an in camera review, the district court
concluded that the documents did not reveal information entitling defendant to
relief and ruled that, “for the reasons set forth in [its prior] memorandum and
order,” Mr. Sears failed to demonstrate that his attorneys’ performances fell
below the requisite standard, or that there was a reasonable probability that, but
for attorneys’ alleged errors, the result of the proceedings would have been
different. The court also denied Mr. Sears’s motion for reconsideration. In
subsequent orders, the district court denied Mr. Sears’s motion for a certificate of
appealability (“COA”) and denied his motion for leave to proceed in forma
pauperis. Mr. Sears now appeals these determinations.
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Under the terms of the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), we may issue a COA only if Mr. Sears makes a “substantial
showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), such that
“reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong,” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003).
Affording Mr. Sears’s pro se filings the degree of leeway they are due, see Van
Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007), we nevertheless
conclude based on our review of the record, and for substantially the same
reasons given by the district court, 1 that no reasonable jurist could debate the
correctness of the district court’s rulings. Mr. Sears’s request for COA is
therefore denied and this appeal is dismissed. We also find it appropriate, as did
the district court, to deny Mr. Sears’s motion to proceed in forma pauperis.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
1
Mr. Sears argues that the district court erred in denying his COA without
providing a statement of reasons as required by Federal Rules of Appellate
Procedure 22(b). We disagree. The district court denied Mr. Sears’s COA
because it determined his motion was “nothing more than a virtual verbatim
recitation of his § 2255 motion,” in which he made no effort to meet the
requirements of obtaining a COA. In light of the fact that the district court had
previously issued a total of 14 pages elucidating its grounds for rejecting Mr.
Sears’s § 2255 motion, we find that its stated reason for denying a COA satisfied
its obligations.
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