United States v. Sears ( 2022 )


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  • Appellate Case: 22-1243     Document: 010110775673       Date Filed: 11/30/2022     Page: 1
    FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS                          Tenth Circuit
    FOR THE TENTH CIRCUIT                        November 30, 2022
    _________________________________
    Christopher M. Wolpert
    Clerk of Court
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.                                                          No. 22-1243
    (D.C. Nos. 1:21-CV-00141-WJM &
    WILLIAM J. SEARS,                                     1:16-CR-00301-WJM-1)
    (D. Colo.)
    Defendant - Appellant.
    _________________________________
    ORDER DENYING CERTIFICATE OF APPEALABILITY*
    _________________________________
    Before MATHESON, KELLY, and ROSSMAN, Circuit Judges.
    _________________________________
    William J. Sears pled guilty to securities fraud conspiracy and failing to file a
    tax return. He was sentenced to 96 months in prison. Appearing pro se, he seeks a
    certificate of appealability (“COA”) to challenge the district court’s denial of his
    motion under 
    28 U.S.C. § 2255
     to vacate, set aside, or correct his sentence. See 
    28 U.S.C. § 2253
    (c)(1)(B) (requiring a COA to appeal an order denying a petition for
    relief under § 2255). Mr. Sears also seeks leave to proceed in forma pauperis (“ifp”).
    *
    This order is not binding precedent except under the doctrines of law of the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.
    Appellate Case: 22-1243      Document: 010110775673     Date Filed: 11/30/2022   Page: 2
    Exercising jurisdiction under 
    28 U.S.C. §§ 1291
     and 2253(a), we deny both requests
    and dismiss this matter.1
    I. BACKGROUND
    A. Investigation
    In 2014, the Federal Bureau of Investigation (“FBI”) obtained a search warrant
    for a company owned in part by Mr. Sears. The FBI supported its warrant request
    with an affidavit from Special Agent Kate Funk. She said in the affidavit that before
    working for the FBI, she “received an Accounting degree from the University of
    Kansas” and “became a Certified Public Accountant in 1996 through the state of
    Kansas.” ROA, Vol. I at 266 ¶ 1. The affidavit described apparent irregularities in
    the company’s revenue stream suggesting financial malfeasance by Mr. Sears.
    Before the FBI investigation, attorney Frederick Lehrer advised Mr. Sears
    about activities underlying this case. During the investigation, the FBI interviewed
    Mr. Lehrer, who provided incriminating evidence. The Government never disclosed
    to Mr. Sears that Mr. Lehrer and Kenneth Harmon, the Assistant United States
    Attorney (“AUSA”) who prosecuted Mr. Sears, had served together on a securities
    fraud task force in Florida in the 1990s before AUSA Harmon became a federal
    prosecutor.
    1
    Because Mr. Sears is pro se, we “construe his arguments liberally” but do not
    “serve as his advocate.” United States v. Pinson, 
    584 F.3d 972
    , 975 (10th Cir. 2009).
    2
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    B. Guilty Plea, Motion to Withdraw, and Sentencing
    In September 2016, the Government filed an Information, charging Mr. Sears
    with (1) conspiring to commit securities fraud and (2) filing a false tax return.
    In November 2016, Mr. Sears pled guilty to both charges under a plea
    agreement. In the plea agreement, Mr. Sears “knowingly and voluntarily waive[d]”
    the right to appeal his sentence unless it exceeded the statutory maximum. ROA,
    Vol. I at 68. The district court held a change of plea hearing during which Mr. Sears
    confirmed he had reviewed the plea agreement with his attorney, was aware of the
    waiver, and entered the agreement voluntarily.
    In April 2019, Mr. Sears moved to withdraw his guilty plea, alleging the
    Government withheld exculpatory evidence that (1) Special Agent Funk “lied about
    her credentials” as a CPA to obtain the search warrant and (2) there was a connection
    between Mr. Lehrer and AUSA Harmon. ROA, Vol. I at 142-44. The district court
    rejected these arguments and denied Mr. Sears’s motion.
    In January 2020, the district court sentenced Mr. Sears to 96 months in prison.
    He timely appealed, asserting the Government engaged in misconduct and his
    attorney rendered ineffective assistance. The Government moved to enforce the
    appeal waiver in Mr. Sears’s plea agreement. We granted that motion and dismissed
    the appeal. See United States v. Sears, 822 F. App’x 818 (10th Cir. 2020)
    (unpublished).
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    C. Section 2255 Proceedings
    Mr. Sears then filed a motion to vacate, set aside, or correct his sentence under
    
    28 U.S.C. § 2255
    . He asserted that his plea agreement was involuntary because he
    was unaware—due to Government misconduct or ineffective assistance from his
    attorney—of Special Agent Funk’s alleged misrepresentations about her CPA status
    and the connection between AUSA Harmon and Mr. Lehrer. Mr. Sears argued this
    violated his rights to due process and effective assistance of counsel. He also
    asserted other claims not at issue here.
    The district court denied the § 2255 motion. It found that “Agent Funk is a
    CPA, and Sears is only questioning the contexts in, and purposes for which, she may
    represent herself as such, under Kansas Law.” ROA, Vol. I at 577 (quotations
    omitted). Also, because any evidence that Special Agent Funk misstated her status as
    a CPA “is, at best, impeachment evidence,” the court held that the Government was
    not required to disclose it before Mr. Sears pled guilty. Id. (quotations omitted).
    As to Mr. Lehrer, the district court observed that Mr. Sears “does not explain
    how any information . . . about any such relationship [between him and AUSA
    Harmon] would lead to anything more than, at best, impeachment evidence,” which
    “[t]he Government had no duty to disclose.” Id. at 578-79.
    The district court declined to issue a COA. Mr. Sears requests this court to
    issue a COA, and he asks to proceed ifp.
    4
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    II. DISCUSSION
    Mr. Sears seeks a COA on whether his plea was involuntary because (1) the
    Government withheld exculpatory evidence in violation of the Fifth Amendment Due
    Process Clause under Brady v. Maryland, 
    373 U.S. 83
     (1963); and (2) his counsel
    was ineffective in failing to discover the exculpatory evidence in violation of the
    Sixth Amendment under Strickland v. Washington, 
    466 U.S. 668
     (1984).
    In support of both claims, Mr. Sears asserts that (1) Special Agent Funk “lied
    about her qualifications as a [CPA] in the affidavit supporting the Government’s
    search warrants,” Aplt. Br. at 8, and (2) Mr. Lehrer lied to the FBI due to his prior
    relationship with AUSA Harmon, id. at 18-19.2
    Mr. Sears also argues he should have received an evidentiary hearing in
    district court.
    A. Legal Background
    COA Requirement
    To obtain a COA, Mr. Sears must make a “substantial showing of the denial of
    a constitutional right,” 
    28 U.S.C. § 2253
    (c)(2), by demonstrating “that reasonable
    2
    Mr. Sears further suggests the FBI’s search warrant violated his Fourth
    Amendment rights, or that his attorney performed deficiently by failing to move to
    suppress the evidence the warrant produced. See, e.g., Aplt. Br. at 20-21. But
    because Mr. Sears pled guilty, “he may not thereafter raise independent claims
    relating to the deprivation of constitutional rights that occurred prior to the entry of
    the guilty plea. He may attack only the voluntary and intelligent character of the
    guilty plea . . . .” Tollett v. Henderson, 
    411 U.S. 258
    , 267 (1973). Thus, Mr. Sears’s
    arguments turn on whether his plea was voluntary.
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    jurists could debate whether . . . the petition should have been resolved in a different
    manner or that the issues were adequate to deserve encouragement to proceed
    further.” Slack v. McDaniel, 
    529 U.S. 473
    , 484 (2000) (quotations omitted). When
    assessing the district court’s denial of a § 2255 motion, “we review the district
    court’s findings of fact for clear error and its conclusions of law de novo.” United
    States v. Rushin, 
    642 F.3d 1299
    , 1302 (10th Cir. 2011).
    Knowing and Voluntary Plea
    Mr. Sears argues that his plea was not knowing and voluntary. “The Due
    Process Clause of the Fourteenth Amendment requires that a defendant knowingly
    and voluntarily enter a plea of guilty.” United States v. McIntosh, 
    29 F.4th 648
    , 655
    (10th Cir. 2022) (quotations omitted). For a plea to be voluntary, the “defendant’s
    decision to plead guilty must be deliberate and intelligent and chosen from available
    alternatives.” 
    Id.
     (quotations omitted).
    A defendant may establish that his guilty plea was involuntary if he should
    have been but was not informed of information relevant to his case. If the
    Government failed to disclose material exculpatory evidence or if the defendant’s
    attorney failed to discover that information through a reasonable investigation, the
    defendant may not have “chosen from available alternatives” when he entered a
    guilty plea. 
    Id.
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    B. Analysis
    Involuntary Plea Based on Brady Violation
    a. Additional legal background
    Brady v. Maryland requires the Government to disclose exculpatory evidence
    to criminal defendants. 
    373 U.S. 83
    , 87 (1963). “[U]nder certain limited
    circumstances, the prosecution’s violation of Brady can render a defendant’s plea
    involuntary.” United States v. Wright, 
    43 F.3d 491
    , 496 (10th Cir. 1994).
    To prove that a Brady violation rendered a plea involuntary, a defendant must
    demonstrate the exculpatory evidence is “material”—that there is “a reasonable
    probability that but for the failure to produce such information the defendant would
    not have entered the plea but instead would have insisted on going to trial.” United
    States v. Walters, 
    269 F.3d 1207
    , 1214 (10th Cir. 2001) (quotations omitted).
    “Assessment of [materiality] involves an objective inquiry that asks not what a
    particular defendant would do but rather what is the likely persuasiveness of the
    withheld information.” 
    Id. at 1215
     (quotations omitted). In other words, the
    withheld evidence must be significant enough, in the context of the case as a whole,
    to “have affected the outcome of the trial.” United States v. Combs, 
    267 F.3d 1167
    ,
    1175 (10th Cir. 2001) (quotations omitted). Brady does not “require the Government
    to disclose material impeachment evidence prior to entering a plea agreement with a
    criminal defendant.” United States v. Ruiz, 
    536 U.S. 622
    , 633 (2002) (emphasis
    added).
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    b. Application
    Mr. Sears argues the Government violated Brady in two ways, rendering his
    plea involuntary. We address each in turn.
    i. Special Agent Funk
    Mr. Sears contends the Government failed to disclose evidence that Special
    Agent Funk “lied to obtain the search warrant.” Aplt. Br. at 8. Special Agent Funk
    represented on the search warrant application affidavit that she graduated from
    college with an accounting degree and “became” a CPA in Kansas. ROA, Vol. I
    at 266 ¶ 1. Mr. Sears asserts Special Agent Funk was not a qualified CPA in Kansas
    because “in order to practice as a CPA (perform or offer to perform services as a
    CPA), a person must . . . provide proof to the Kansas Board of Accountancy of the
    requisite experience requirement, complete a form, pay a fee, and then be subject to
    continuing education requirements.” Aplt. Br. at 10 (citing 
    Kan. Stat. Ann. § 1-316
    ).
    He contends Special Agent Funk had not met these requirements, 
    id. at 8
    , and that the
    Government should have disclosed this “exculpatory” evidence, 
    id. at 5
    . We
    disagree.
    Special Agent Funk did not misrepresent her credentials in the affidavit. The
    affidavit said she graduated with an accounting degree and “became” a CPA—not
    that she was currently licensed and practicing as a CPA. Kansas law might limit
    Special Agent Funk’s ability to “perform or offer to perform services as a CPA” to
    the general public, as Mr. Sears suggests, Aplt. Br. at 10, but she did not claim to be
    performing CPA services when she wrote the affidavit. Rather, she used her
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    specialized training to assess Mr. Sears’s company’s finances for investigative
    purposes. See ROA, Vol. I at 266 ¶ 2 (“At all times during the investigation
    described in this affidavit, I have been acting in my official capacity as a Special
    Agent with the FBI.”).
    Additionally, Special Agent Funk’s alleged misrepresentation was, at most,
    impeachment evidence. But Brady does not require the Government to disclose
    impeachment evidence—even if it is material—before entering a plea agreement with
    a criminal defendant. Ruiz, 
    536 U.S. at 633
    .
    Finally, even if Mr. Sears should have received information about Special
    Agent Funk’s CPA status from the Government, this evidence would have lacked
    probative value. Under Brady, Mr. Sears must demonstrate the “likely
    persuasiveness of the withheld information” is such that he “would not have entered
    the plea but instead would have insisted on going to trial.” Walters, 
    269 F.3d at 1214-15
     (quotations omitted); see also United States v. Reed, 
    39 F.4th 1285
    , 1293
    (10th Cir. 2022). At most, the information about Special Agent Funk would have
    enabled Mr. Sears to cross-examine her about her CPA qualifications. Mr. Sears has
    not demonstrated a reasonable probability that possessing this information would
    have changed his decision to plead guilty.
    ii. Mr. Lehrer
    Mr. Sears also contends his plea was involuntary because the Government
    wrongfully withheld information about Mr. Lehrer’s “personal relationship with the
    prosecutor.” Aplt. Br. at 19. As discussed, Mr. Lehrer—an attorney who at one
    9
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    point advised Mr. Sears and later gave incriminating evidence to the FBI—once
    served on a task force with AUSA Harmon. Mr. Sears asserts that Mr. Lehrer “lied
    under oath during his discussions with the FBI and prosecutors. His lies are
    verifiably false, and had I known about them prior to pleading guilty, I would not
    have done so . . . .” Aplt. Br. at 18-19. We again disagree.
    Mr. Sears has not shown that Mr. Lehrer’s relationship with AUSA Harmon
    affected his statements to the FBI. Also, the Lehrer-Harmon connection was
    impeachment evidence, which the Government was not required to disclose before
    entering a plea agreement with Mr. Sears. Ruiz, 
    536 U.S. at 633
    . Thus, Mr. Lehrer
    has not asserted a viable Brady claim.
    Even if he had, Mr. Sears has not shown that impeachment of Mr. Lehrer
    would have significantly affected his likelihood of success. Absent a reason to
    believe that Mr. Sears “would not have entered the plea but instead would have
    insisted on going to trial” if he possessed information about Mr. Lehrer’s connection
    with AUSA Harmon, Walters, 
    269 F.3d at 1214
    , lacking that information did not
    prejudice him.
    *    *   *    *
    For the foregoing reasons, we conclude that reasonable jurists would not
    debate the district court’s denial of habeas relief based on Mr. Sears’s claim that a
    Brady violation rendered his guilty plea involuntary. We therefore deny a COA on
    this issue.
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    Involuntary Plea Based on Ineffective Assistance
    a. Additional legal background
    Receiving ineffective assistance of counsel may render a defendant’s guilty
    plea involuntary. Reed, 39 F.4th at 1293. “We review a challenge to a guilty plea
    based on a claim of ineffective assistance of counsel using the two-part test
    announced in Strickland v. Washington,” id. (citation and quotations omitted), which
    requires the defendant to show that (1) his attorney performed deficiently and (2) he
    suffered prejudice as a result. Id.
    “To show prejudice in the guilty plea context, the defendant must establish that
    there is a reasonable probability that, but for counsel’s errors, he would not have
    pleaded guilty and insisted on going to trial.” Id. (quotations omitted). “This
    prejudice inquiry . . . of an alleged ‘failure to investigate or discover exculpatory
    evidence’ . . . depends largely on whether the evidence or defense ‘likely would have
    changed the outcome of a trial.’” United States v. Graham, 179 F. App’x 528, 533
    (10th Cir. 2006) (quoting Hill v. Lockhart, 
    474 U.S. 52
    , 59 (1985)).
    b. Application
    Mr. Sears asserts his plea was involuntary because his attorney failed to
    uncover evidence about Special Agent Funk’s alleged misrepresentations about her
    CPA qualifications and Mr. Lehrer’s alleged connection with AUSA Harmon,
    thereby rendering ineffective assistance. Aplt. Br. at 17-19. These arguments are
    unavailing for much the same reasons as Mr. Sears’s arguments about his Brady
    claims.
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    Mr. Sears has failed to show prejudice. As discussed above, Mr. Sears’s
    assertions about Special Agent Funk’s alleged misrepresentations lack merit, and he
    does not explain how the Lehrer-Harmon connection affected the evidence against
    him. And even if there were merit to these arguments, the information would have
    been at most relatively weak impeachment evidence. Mr. Sears has not shown how
    this evidence “would have changed the outcome of a trial.” Hill, 
    474 U.S. at 59
    . He
    thus has not established “a reasonable probability that, but for counsel’s errors, he
    would not have pleaded guilty and insisted on going to trial.” Reed, 39 F.4th at 1293
    (quotations omitted).
    *    *   *    *
    The foregoing shows that reasonable jurists would not debate the district
    court’s denial of Mr. Frederick’s claim of an involuntary plea based on ineffective
    assistance of counsel. We therefore deny a COA on this issue.
    Evidentiary Hearing
    Mr. Sears contends the district court abused its discretion in declining to hold
    an evidentiary hearing on his § 2255 motion. Aplt. Br. at 4-7. We disagree.
    Section 2255(b) provides that a district court must hold an evidentiary hearing
    on a petitioner’s motion “[u]nless the motion and the files and records of the case
    conclusively show that the prisoner is entitled to no relief.” “We review the district
    court’s refusal to hold an evidentiary hearing for an abuse of discretion.” United
    States v. Moya, 
    676 F.3d 1211
    , 1214 (10th Cir. 2012) (quotations omitted). Because
    the district court’s ruling denying an evidentiary hearing would be reviewed for
    12
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    abuse of discretion during a merits appeal, the Supreme Court has accepted a
    formulation of “the COA question” as “whether a reasonable jurist could conclude
    that the District Court abused its discretion.” Buck v. Davis, 
    137 S. Ct. 759
    , 777
    (2017) (quoting Slack, 
    529 U.S. at 484
    ).
    The district court is “not required to hold [an] evidentiary hearing[] [for a
    § 2255 motion] without a firm idea of what the testimony will encompass and how it
    will support a movant’s claim.” Moya, 
    676 F.3d at 1214
     (quotations omitted).
    Moreover, if the district court, in denying a § 2255 motion, “relate[s] what sources in
    the record it relied on and why it denied” the arguments in the motion, it did not
    abuse its discretion for failing to hold a hearing. United States v. Johnson, 
    42 F.3d 1407
     (Unpublished Table Decision), 
    1994 WL 683930
    , at *2 (10th Cir. 1994) (cited
    for persuasive value under Fed. R. App. P. 32.1; 10th Cir. R. 32.1(A)).
    Where, as here, a petitioner’s habeas claims are capable of being resolved on
    the existing record, there is no entitlement to an evidentiary hearing. Torres v.
    Mullin, 
    317 F.3d 1145
    , 1161 (10th Cir. 2003). Mr. Sears does not explain what
    additional evidence he could have presented at a hearing to support his claims. Aplt.
    Br. at 4-7. He has failed to present a “firm idea of what the testimony [at a hearing]
    w[ould] encompass and how it w[ould] support [his] claim.” Moya, 
    676 F.3d at 1214
    . And the district court supported its holdings by identifying the “sources in the
    record it relied on.” Johnson, 
    1994 WL 683930
    , at *2. The district court thus did not
    abuse its discretion in declining to grant an evidentiary hearing. We conclude
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    reasonable jurists could not debate that an evidentiary hearing was unnecessary. We
    decline to grant a COA on this issue.
    III. CONCLUSION
    Mr. Sears has not demonstrated that “reasonable jurists could debate” the
    district court’s denial of his § 2255 motion. Slack, 
    529 U.S. at 484
    . Also, he has not
    presented “a reasoned, nonfrivolous argument on the law and facts in support of the
    issues raised on appeal.” DeBardeleben v. Quinlan, 
    937 F.2d 502
    , 505 (10th Cir.
    1991). We thus deny his request for a COA, deny his request to proceed ifp, and
    dismiss this matter.3
    Entered for the Court
    Scott M. Matheson, Jr.
    Circuit Judge
    3
    Judge Rossman would grant Mr. Sears’s ifp request.
    14