United States v. Reed

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 28, 2019

Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,

Plaintiff - Appellant,
No. 18-8042
v. (D.C. No. 1:16-CV-00245-SWS and)
1:12-CR-00058-SWS-1
ROBERT A. REED, (D. Wyoming)

Defendant - Appellee.

ORDER DENYING
CERTIFICATE OF APPEALABILITY *

Before HARTZ, McHUGH, and CARSON, Circuit Judges.

Petitioner Robert Reed, a federal prisoner proceeding pro se,1 seeks a Certificate

of Appealability (“COA”) to challenge the district court’s dismissal of his 28 U.S.C.

§ 2255 petition to vacate, set aside, or correct his sentence. The district court dismissed

Mr. Reed’s petition. We deny Mr. Reed’s COA request and dismiss the appeal.

*
This order is not binding precedent, except under the doctrines of law of the case,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 Federal Rule of Appellate Procedure 32.1 and 10th Circuit Rule 32.1.
1
Because Mr. Reed is proceeding pro se, “we liberally construe his filings, but we
will not act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
 BACKGROUND

In 2012, the United States charged Mr. Reed and others with crimes involving a

scheme to sell investments in non-existent wind farm projects. Specifically, in a second

superseding indictment, the Government charged Mr. Reed with nine counts of mail and

wire fraud, money laundering, and conspiracies to commit these crimes. Mr. Reed

ultimately pleaded guilty to conspiracy to commit mail and wire fraud in violation of 18

U.S.C. §§ 1349, 1341, and 1343, and to conspiracy to commit money laundering in

violation of 18 U.S.C. § 1956(h). The district court accepted his plea and sentenced him

to a term of 151 months’ imprisonment. On direct appeal, Mr. Reed challenged his

conviction, his sentence, and the district court’s order forfeiting various assets to the

United States. We affirmed each of those rulings in United States v. Reed, 602 F. App’x

436 (10th Cir. 2015) (unpublished). Addressing the challenge to his conviction, this court

determined that the Government had presented sufficient evidence that:

Defendant exercised control over all the invested funds, most of which
came into accounts he opened as the sole signatory with the authority to
withdraw funds for distribution to other members of the conspiracy. He also
was responsible for setting up the many drop boxes used as company
addresses for collecting and forwarding investor funds to the accounts he
controlled—drop boxes set up with his credit card and phone number by
someone with a name identified as an alias he used for this purpose. As for
solicitation activities, while a Greg Doss ran the “boiler room” where sales
people worked, the sales pitches and what investors should be told came
from Defendant, who also participated in periodic conference calls to
provide investors with information and to answer questions the sales people
were not equipped to handle. In addition, in the one illustrative example of
a defrauded investor detailed at the sentencing hearing, a letter sent to
assure the investor that a (nonexistent) wind turbine had been purchased
with his $250,000 investment was written and sent to Mr. Doss’s office by
Defendant with the direction that it be cut and pasted and forwarded to the
investor under the name of one of Mr. Doss’s staff. Another participant,

2
 whose various duties included travelling to South Dakota to erect a sign
indicating progress where a wind farm was supposed to be under
construction, specifically told an investigator that he “worked for Robert
Reed.” Finally, while Defendant insisted he was merely a consultant paid a
yearly salary of $125,000 by Mr. Doss, evidence regarding the accounts
under his sole control showed cash withdrawals (which, of course, only
Defendant could make) as well as direct transfers of funds into his own
personal account totaling approximately $700,000 over a period of just two
and one-half years.

Id. at 440–41.

During the criminal proceedings and on direct appeal, Mr. Reed was represented

by several different attorneys. After his initial arrest, the U.S. District Court for the

District of Wyoming arraigned Mr. Reed on April 5, 2012, at which time an attorney

from the Federal Public Defender’s Office represented Mr. Reed. Four days later,

attorney Richard Szekely filed a notice of appearance for himself and Utah attorney

Sonny Olsen as privately-retained counsel for Mr. Reed. But after Mr. Reed used

Mr. Olsen to send proceeds obtained in the fraudulent scheme to Wyoming attorneys

including Mr. Szekely, the district court excused Mr. Szekely and appointed the Federal

Public Defender’s Office to represent Mr. Reed.

On August 1, 2012, the Wyoming district court arraigned Mr. Reed on a

superseding indictment and Assistant Federal Public Defender James Barrett appeared as

his counsel. Mr. Barrett represented Mr. Reed until January 2, 2013, when the district

court granted his motion to withdraw because Mr. Reed had refused to communicate with

him and had filed a grievance against him with the Wyoming State Bar. The district court

then appointed attorney Eric Palen to represent Mr. Reed beginning January 9, 2013.

3
 After Mr. Reed pleaded guilty, but before he was sentenced, attorney Scott Powers

filed a notice of appearance as retained counsel for Mr. Reed. Mr. Palen then moved to

withdraw, but the district court denied his motion. As a result, Mr. Palen and Mr. Powers

both appeared with Mr. Reed at sentencing. On direct appeal, Mr. Powers entered an

appearance for Mr. Reed but later withdrew.

After “filing . . . numerous frivolous motions attempting to collaterally attack in

some fashion the validity of his conviction and/or sentence,” Mr. Reed timely filed his

initial § 2255 motion to vacate and set aside his conviction and sentence on October 3,

2016. ROA at 220. In his § 2255 motion, Mr. Reed petitioned the district court for relief

on three grounds: (1) his plea, conviction, and sentence violated his right to effective

assistance of counsel under the Sixth Amendment; (2) he received ineffective assistance

of counsel during the pretrial, plea, sentencing, and appeal phases of his case; and (3) his

conviction and sentence violated the First, Fourth, Fifth, Sixth, and Eighth Amendments.

The district court considered only the Sixth Amendment claims in Mr. Reed’s § 2255

motion, observing that “[r]egarding asserted violations of the First, Fourth, Fifth and

Eighth Amendments[,] . . . Defendant offers no specific allegations or argument in

support.” Id. The district court also considered and rejected three arguments Mr. Reed

raised in other motions: (1) an argument that “he must be re-sentenced pursuant to

Amendment 794 which amended the commentary governing minor role adjustments

under U.S.S.G. § 3B1.2”; and (2) a request for “discovery in the form of production of

documents and depositions on certain witnesses, including his attorneys Scott Powers and

4
Eric Palen and Assistant United States Attorney Lisa Leschuck”; and (3) a “Motion to Set

Aside Conviction Due to Alleged Destruction of Evidence.” Id. at 239–40.

The district court denied all Mr. Reed’s claims for relief, concluding:

Underlying all of Defendant’s arguments is his insistence that he committed
no crime. However, “Defendant does not challenge the factual basis of his
plea, which conclusively established his guilt with respect to the elements
of the charged criminal conspiracy.” [Reed,] 602 F. App’x at 438.
Defendant has failed to establish his counsel’s representation “fell below an
objective standard of reasonableness,” and “that there is a reasonable
probability that, but for counsel’s unprofessional errors, the results of the
proceeding would have been different.” [United States v. Taylor, 454 F.3d
1075, 1079 (10th Cir. 2006).] Because the Court can resolve each of
Defendant’s ineffective assistance of counsel claims on the record, he is not
entitled to an evidentiary hearing as he suggests.

Id. at 26.

Finally, the district court denied Mr. Reed’s motion to set aside his conviction,

reasoning that the motion “raise[]d a brand new substantive claim unrelated to the

ineffective assistance of counsel claims which are the subject of his original § 2255

motion” and therefore could not relate back to the filing date of the original § 2255

motion. Id. at 241. Thus, the court concluded the “new claim falls well outside the one-

year limitation period applicable to § 2255 motions.” Id. The district court declined to

grant a COA on any issue. Id. at 242–43.

Mr. Reed responded by filing a series of motions with this court. Because he had

failed to file a combined opening brief and application for a certificate of appealability by

the November 19, 2018 deadline, we dismissed his appeal on November 26, 2018, for

failure to prosecute. One month later, on December 12, 2018, Mr. Reed filed his

combined brief and application for a COA. Construing a subsequent letter from him as a

5
motion to reinstate the appeal, we granted his request and reinstated the appeal. In that

order, we also reinstated: (1) Mr. Reed’s Motion for Leave to Proceed on Appeal without

Prepayment of Costs or Fees; (2) Mr. Reed’s Motion for Summary Disposition Due to

Mootness; (3) Mr. Reed’s Renewed Motion to Correct the Record; and (4) Mr. Reed’s

Motion to Correct the Record. We also “caution[ed] Mr. Reed that any future motions

that duplicate motions he has already filed in this appeal may be stricken.” Order

Reinstating Appeal, at 2 (Dec. 21, 2018). Since then, Mr. Reed has filed a Motion for

Leave to Amend Initial Section 2255 Motion on Newly Discovered Brady Violations.

ANALYSIS

A. Standard of Review

Because the district court denied Mr. Reed a COA, we lack jurisdiction to consider

the merits of his appeal unless we first issue a COA. See 28 U.S.C. § 2253(c)(1)(A);

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). We will issue a COA “only if the

applicant has made a substantial showing of the denial of a constitutional right.” Okyere

v. Rudek, 732 F.3d 1148, 1149 (10th Cir. 2013) (quoting 28 U.S.C. § 2253(c)(2)). To

make such a showing, the petitioner must demonstrate “that reasonable jurists could

debate whether (or, for that matter, agree that) the [§ 2255 petition] should have been

resolved in a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Id. at 1149–50 (quoting Slack v. McDaniel, 529 U.S.

473, 484 (2000)). Where the “district court has rejected the constitutional claims on the

merits, the showing required . . . is straightforward: The petitioner must demonstrate that

reasonable jurists would find the district court’s assessment of the constitutional claims

6
debatable or wrong.” Slack, 529 U.S. at 484. On the other hand, where the district court

has rejected the claims “on procedural grounds without reaching the prisoner’s

underlying constitutional claim,” the petitioner must show “that jurists of reason would

find it debatable whether the petition states a valid claim of the denial of a constitutional

right and that jurists of reason would find it debatable whether the district court was

correct in its procedural ruling.” Id. (emphasis added).

B. Discussion

On appeal, Mr. Reed does not expressly challenge the district court’s conclusions

regarding his Sixth Amendment arguments. Instead, he raises three new claims of error:

(1) that “[t]he entire case or controversy is moot, and this court lacks subject matter

jurisdiction; (2) “Breach of the Plea Agreement”; and (3) “Brady violations.” Pet’r’s Br.

at 1. In addition to these arguments, we discern from his briefing two ineffective-

assistance-of-counsel claims: one based on his lack of representation on direct appeal and

another based on his trial counsel’s failure to object to the Government’s alleged non-

disclosure of evidence.2 We address each of these arguments in turn below.

2
In his Affidavit to Accompany Motion for Permission to Appeal in Forma
Pauperis, Mr. Reed listed eight issues on appeal: “Brady violations,” “Knowing
presentation of false evidence,” “Expired Grand Jury,” “Lack of Jurisdiction,” “failure to
hold evidentiary hearing,” “failure to rule on the issues,” “improper conversion of
supplemental claim as second or successive,” and “breach of the plea agreement.” But he
provides no argument in his briefing to support his claims of “Expired Grand Jury” or
“failure to rule on the issues,” so we do not consider these claims. And because we
construe his references to “Knowing presentation of false evidence” and “improper
conversion of supplemental claim” as parts of his Brady argument, we address these
claims in that context.

7
1. Mootness

Mr. Reed devotes most of his briefing to an argument that his case is “moot,”

citing the “Article III requirement that federal courts may only decide actual, ongoing

cases or controversies.”3 He elaborates:

This case is moot because the case or controversy claimed by prosecutors,
does not, or no longer exists. i.e. a scheme to sell investments in wind farm
projects; taking money to fund wind farms in Wyoming; lying for money;
selling investments in wind farms to unwitting investors, which make
material false promises, including the promise of a 140% return within one
year, and the promise that all funds will be used to construct wind farms in
Wyoming. Importantly, none of it ever happened.

Pet’r’s Br. at 3. Mr. Reed did not raise this argument before the district court. Absent

extraordinary circumstances, we do not consider arguments made for the first time on

appeal. United States v. Viera, 674 F.3d 1214, 1220 (10th Cir. 2012). This rule applies

even when “an appellant is attempting to raise . . . a new theory that falls under the same

general category as [a previous] argument.” Id. (quoting McDonald v. Kinder-Morgan,

Inc., 287 F.3d 992, 999 (10th Cir. 2002)).

Mindful of this fact, Mr. Reed observes that mootness is a jurisdictional issue

which “can be raised at any time, including the first time on appeal.” Pet’r’s Br. at 28. He

is correct that Article III’s “‘case or controversy’ requirement applies at all stages of

review” and that mootness, as a “threshold issue of jurisdiction,” can be raised at any

time. Colo. Off Highway Vehicle Coalition v. U.S. Forest Service, 357 F.3d 1130, 1133

3
Prior to filing his Application for a COA, Mr. Reed filed a Motion for Summary
Disposition Due to Mootness. This motion is duplicative of the arguments in Mr. Reed’s
Application for a COA before us and is untimely. We therefore do not consider it.
8
(10th Cir. 2004). Contrary to Mr. Reed’s argument, however, whether a criminal case is

moot has nothing to do with the strength of the Government’s evidence. Rather, “[a]

criminal case is moot only if it is shown that there is no possibility that any collateral

legal consequences will be imposed on the basis of the challenged conviction.” Hagos v.

Raemisch, 811 F.3d 363, 368 (10th Cir. 2015) (quoting Sibron v. New York, 392 U.S. 40,

57 (1968)). Because Mr. Reed is incarcerated, his conviction unquestionably has ongoing

legal consequences and this matter is not moot.

In any event, even if we were to agree that Mr. Reed’s habeas action is moot,

Mr. Reed would not be entitled to relief. To the contrary, the proper action for a moot

issue on habeas review is dismissal, not a grant of relief. Spencer v. Kemna, 523 U.S. 1,

17 (1998) (noting in a habeas case that “mootness, however it may come about, simply

deprives us of our power to act; there is nothing for us to remedy, even if we were

disposed to do so”); Walker v. United States, 680 F.3d 1205, 1206 (10th Cir. 2012)

(dismissing petition for post-conviction relief as moot).

Mr. Reed’s claim is best construed not as a mootness argument, but as a

sufficiency-of-the-evidence argument. See Jackson v. Virginia, 443 U.S. 307, 318 (1979)

(describing the sufficiency-of-the-evidence inquiry as asking “whether the record

evidence could reasonably support a finding of guilty beyond a reasonable doubt”). But

he failed to raise such an argument before the district court. See ROA at 242 (“Defendant

does not challenge the factual basis of his plea, which conclusively established his guilt

with respect to the elements of the charged criminal conspiracy.” (quoting Reed, 602 F.

App’x at 438)). Furthermore, we discern no extraordinary circumstances justifying

9
deviation “from the general rule that we do not address arguments presented for the first

time on appeal,” United States v. Mora, 293 F.3d 1213, 1216 (10th Cir. 2002),

particularly given Mr. Reed’s “guilty plea admitting the elements of the charged

offenses,” Reed, 602 F. App’x at 437; see also United States v. Salazar, 323 F.3d 852,

856 (10th Cir. 2003) (“[A] guilty plea represents a break in the chain of events which has

preceded it in the criminal process. When a criminal defendant has solemnly admitted in

open court that he is in fact guilty of the offense with which he is charged, he may not

thereafter raise independent claims relating to the deprivation of constitutional rights that

occurred prior to the entry of the guilty plea.” (quoting Tollett v. Henderson, 411 U.S.

258, 267 (1973)).

2. Breach of the Plea Agreement

Mr. Reed states that he “cannot brief this issue without access to the record and

transcripts,” which he says he has not received.4 Pet’r’s Br. at 4. Nevertheless, “without

waiving this issue, and preserving the right to amend when [he] obtains access to the

record and transcripts,” he summarizes the argument: Mr. Reed claims that after he

bargained for a provision in his plea agreement to retain his right to appeal, “the

government immediately sought to enforce an appellate waiver provision of the plea

agreement.” Id. But it is unclear how the Government could have breached the plea

4
Mr. Reed has repeatedly protested the requirement that he pay for copies of
documents. See 28 U.S.C. § 1913 (Judicial Conference Schedule of Fees). We addressed
this issue by order on November 7, 2018, allowing Mr. Reed to file his COA application
more than three months after the original deadline and noting that “[t]hough we are
sympathetic to Mr. Reed’s financial difficulties in paying the copying fee, the fee
schedule applies to all litigants.” Order, at 2 (Nov. 7, 2018).
10
agreement, given that Mr. Reed did exercise his right to appeal his conviction and

sentence. See Reed, 602 F. App’x at 437–41. In any event, Mr. Reed did not raise this

issue to the district court, so we decline to consider it for the first time on appeal. See

Mora, 293 F.3d at 1216.

3. Brady Violations

Mr. Reed argues on appeal that “83[] ten-page investment contracts . . . used

throughout [his] case” by the Government “have never been produced or turned over.”

Pet’r’s Br. at 4. He claims these contracts are both impeachment evidence and

exculpatory evidence because they are “false evidence, and siply [sic] do not exist.”5 Id.

In support of this argument, he claims he requested the 83 investment contracts from the

United States Attorney General pursuant to the Freedom of Information Act, and in

October 2018, the Attorney General “confirmed and verified that government, the

Attorney General or the Department of Justice does not, and never did possess, and never

did obtain any investment contracts in any wind farm projects.” Id. at 43–44.

Mr. Reed did not properly raise this argument before the district court. Although

he suggested in his § 2255 motion to the district court that the Government withheld

evidence, he did so only by arguing that his counsel performed deficiently by failing to

request the allegedly withheld evidence or to object to various actions by the Government

and the trial court. See, e.g., ROA at 47 (“Counsel unprofessionally failed to object to

5
Mr. Reed alternatively claims that these 83 investment contracts “do not exist,”
see Pet’r’s Br. at 4, “never existed,” see id. at 53, and that they were “withheld,” see id. at
26. Because we do not reach the merits of his argument, we need not attempt to reconcile
these conflicting theories.
11
Brady violations, specifically ‘investor documents’ which promised to place funds into

‘wind farms projects in Wyoming.’”).

To be sure, Mr. Reed did file with the district court a “Motion to Set Aside

Conviction Due to Destruction of Evidence or in the Alternative, Motion for Evidentiary

Hearing” on October 6, 2017. ROA at 240. In this motion, Mr. Reed made essentially the

same argument he now asserts to us: that “‘investor documents,’ which were the core of

the government case,” “have been concealed and destroyed by prosecutors, thus,

depriving Mr. Reed of the right to present exculpatory evidence and in violation of

Brady.” ROA at 176. Liberally construing this pleading as a § 2255 motion, see United

States v. Nelson, 465 F.3d 1145, 1149 (10th Cir. 2006), the district court declined to

consider Mr. Reed’s argument, reasoning that the “pleading is necessarily a second and

successive § 2255 motion, [and] this Court lacks subject matter jurisdiction to consider it

absent the prior authorization of the court of appeals.” ROA at 240–41. The district court

further explained that the motion cannot “be considered simply an amendment to

[Mr. Reed’s] existing § 2255 motion” under Federal Rule of Civil Procedure 15 because

it fell outside the one-year period of limitation under § 2255 and, as it “raise[d] a brand

new substantive claim unrelated to the ineffective assistance of counsel claims which are

the subject of his original § 2255 motion,” it could not relate back to the date Mr. Reed

filed his original petition. Id. at 241; see Fed. R. Civ. P. 15(c).

Mr. Reed filed this petition outside the one-year limitation period for filing a

§ 2255 motion. See 28 U.S.C. § 2255(f)(1). Furthermore, the petition unquestionably

asserts a new argument distinct from Mr. Reed’s earlier ineffective-assistance arguments

12
and therefore cannot relate back to the filing date of Mr. Reed’s original petition. See

United States v. Espinoza-Saenz, 235 F.3d 501, 505 (10th Cir. 2000) (“an untimely

amendment to a § 2255 motion” relates back to the original filing date “only if . . . the

proposed amendment does not seek to add a new claim or to insert a new theory into the

case.”). Therefore, jurists of reason would not find it debatable whether the district court

erred in its procedural ruling denying Mr. Reed’s petition as an untimely amendment to

his initial § 2255 petition. Accordingly, we decline to consider the merits of Mr. Reed’s

new argument for the first time on appeal.6 See Mora, 293 F.3d at 1216.

On March 12, 2019, Mr. Reed sought to supplement his COA application in his

Motion for Leave to Amend Initial Section 2255 Motion on Newly Discovered Brady

Violations. A careful reading of this motion reveals nothing more than reiteration, and

sometimes verbatim repetition, of the Brady argument Mr. Reed already presented to this

court. Because supplementation would be futile, we deny Mr. Reed’s motion to amend,

and we decline to consider his Brady arguments further. Anderson v. Suiters, 499 F.3d

1228, 1238 (10th Cir. 2007) (“A proposed amendment is futile if the [petition], as

amended, would be subject to dismissal.” (internal quotation marks omitted)); see also

Moore v. Reynolds, 153 F.3d 1086, 1116 (10th Cir. 1998) (“Even if Moore had been

6
In the same vein, Mr. Reed asserts for the first time on appeal that the
Government’s failure to disclose the 83 investment contracts violated the “Jencks Act,
Rule 16, Disclosure Orders, ABA model rules, DOJ requirements, and the Constitution.”
Pet’r’s Br. at 24. He refers to these provisions vaguely, and only in the context of arguing
that the Government violated his rights by failing to disclose the investment contracts.
We decline to address these new assertions for the same reasons we decline to address the
Brady argument.
13
allowed to amend his [§ 2254] petition to add the claim, the amendment would have been

futile because the claim sought to be added has already been rejected by this court.”).

4. Ineffective Assistance of Counsel

Mr. Reed makes two ineffective-assistance-of-counsel arguments on appeal:

(1) that he was deprived of representation on his direct appeal and (2) that he received

ineffective assistance from his lawyers because they failed to request the investment

contracts from the Government and to object to the Government’s failure to produce

them. Mr. Reed did make this argument in his § 2255 petition to the district court. See

ROA at 21 (“Counsel failed to . . . object to the fact that no such documents appear in the

record and as such, were either withheld, in violation of Brady, or never existed and

Mr. Reed was sentenced based upon evidence of criminal conduct that does not exist, was

fabricated or withheld by the government.”). The district court rejected both these

arguments on the merits. Therefore, we ask whether the district court’s conclusions on

these issues were fairly debatable. Slack, 529 U.S. at 484.

a. Lack of appellate counsel

Mr. Reed first argues he was deprived of counsel on direct appeal because “the

Court of Appeals allowed CJA counsel Palin to withdraw as CJA counsel, and allowed

CJA counsel Powers to proceed, knowing full well that Powers was disqualified from

representing [Mr. Reed] due to disciplinary and misconduct issues.” Pet’r’s Br. at 20. He

further alleges that after he terminated Mr. Powers, this court “required [him] to proceed

on direct appeal, without counsel.” Id. at 21. The district court rejected this argument,

concluding:

14
 The Defendant . . . cannot credibly claim he was forced to represent himself
on appeal when Mr. Powers withdrew because by that time the Defendant
had been afforded representation from two court-appointed attorneys
(Mr. Barrett and Mr. Palen) and therefore clearly knew he could apply for
representation on appeal. The record reveals the Defendant knowingly and
voluntarily chose to exercise his right to represent himself.

ROA at 237–38. “[A] defendant who exercises his right to appear pro se cannot thereafter

complain that the quality of his own defense amounted to a denial of ‘effective assistance

of counsel.’” McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984) (quoting Faretta v.

California, 422 U.S. 806, 834 n.46 (1975)). Mr. Reed admits he “sought the removal of

. . . [counsel] Powers,” Pet’r’s Br. at 21, and despite his awareness of the right to request

court-appointed appellate counsel as is evidenced by his numerous changes in counsel

throughout his post-conviction odyssey, Mr. Reed did not seek new representation.

Therefore, no reasonable jurist would find the district court’s rejection of this argument

debatable. See Slack, 529 U.S. at 484.

b. Failure to object to alleged Brady violations

Mr. Reed next argues that Mr. Palin rendered ineffective assistance by “fail[ing] to

obtain the prosecutor’s file,” which he claims would have uncovered Brady violations

and shown that the Government lacked evidence of illegal investment contracts. See

Pet’r’s Br. at 32. The district court rejected this argument, reasoning:

Defendant was charged and convicted of conspiracy to commit fraud—
selling investments in wind-farm projects that did not exist—based on
evidence that he and his co-conspirators made false promises to convince
unwitting victims that their money would be used to build wind turbines
from which the “investors” would then receive windfall profits . . . . While
some “investor documents” were part of the government’s evidence, they
were not essential to the government’s case nor did they undermine the
government’s case.

15
ROA at 226. The district court concluded, “the factual basis of [Mr. Reed’s] guilty plea

‘conclusively established his guilt with respect to the elements of the charged criminal

conspiracy.’” Id. (quoting Reed, 602 F. App’x at 438). Addressing Mr. Reed’s claim that

he would not have pleaded guilty had counsel informed him of the Government’s

allegedly faulty evidence, the district court observed that Mr. Reed “fails to explain . . .

how any such facts would have decisively negated or rebutted the government’s evidence

as it relates to any element of the charged mail/wire fraud conspiracy and money

laundering conspiracy crimes” or “how his belief in the existence of the allegedly non-

existent original documents prejudiced him in any way.” Id. at 227. Indeed, “[o]ne can be

guilty of a conspiracy to commit an offense without committing the substantive offense

itself.” United States v. Lake, 472 F.3d 1247, 1263 (10th Cir. 2007). Mr. Reed never

challenges the factual basis of his guilty plea. As we determined in Mr. Reed’s direct

appeal, this factual basis “conclusively established his guilt with respect to the elements

of the charged criminal conspiracy.” Reed, 602 F. App’x 438.

Furthermore, “actual ineffectiveness claims alleging a deficiency in attorney

performance are subject to a general requirement that the defendant affirmatively prove

prejudice.” Strickland v. Washington, 466 U.S. 668, 693 (1984). “[W]hen a defendant

who has pleaded guilty brings an ineffective-assistance claim, he must ‘show that there is

a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty

and would have insisted on going to trial.’” United States v. Moya, 676 F.3d 1211, 1213

(10th Cir. 2012) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). Even assuming all of

16
Mr. Reed’s claims about the 83 investment contracts to be true, he cannot convincingly

argue that his attorney’s failure to disclose these contracts prejudiced him. Nothing in

these contracts disproves the essential elements of the crimes to which Mr. Reed pleaded

guilty. Where Mr. Reed has not shown that any of this alleged evidence would have

disproved his guilt, he cannot show that he would not have pleaded guilty had his

attorneys discovered it. Therefore, the district court’s conclusion that Mr. Reed failed to

show ineffective assistance is not fairly debatable. See Slack, 529 U.S. at 484.

CONCLUSION

Mr. Reed has not demonstrated that the district court’s assessment of any of his

constitutional claims is debatable or wrong. See id. Therefore, we DENY his request for a

COA and DISMISS this appeal.7

Entered for the Court

Carolyn B. McHugh
Circuit Judge

7
Before filing his Application for a COA, Mr. Reed filed a Motion to Correct the
Record and a Renewed Motion to Correct the Record, repeating almost verbatim the
arguments he now asserts regarding the 83 investment contracts and requesting that we
“order the Clerk of the District Court to immediately correct the record to include the
government’s evidence used in the district court.” Mot. to Correct the Record at 22.
Because we decline to grant a COA on any of the issues Mr. Reed asserts, we also
dismiss these motions as moot.
Mr. Reed has also filed a Motion for Leave to Proceed on Appeal without
Prepayment of Costs or Fees. But he has not given “a reasoned, nonfrivolous argument
on the law and facts in support of the issues raised on appeal,” McIntosh v. U.S. Parole
Comm’n, 115 F.3d 809, 812 (10th Cir. 1997) (quotation marks omitted). We therefore
deny his application to proceed in forma pauperis.
17