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This order is not binding precedent except under the doctrines of law of the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
Appellate Case: 22-1243 Document: 010110775673 Date Filed: 11/30/2022 Page: 3
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).
3
Appellate Case: 22-1243 Document: 010110775673 Date Filed: 11/30/2022 Page: 4
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
Appellate Case: 22-1243 Document: 010110775673 Date Filed: 11/30/2022 Page: 5
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.
5
Appellate Case: 22-1243 Document: 010110775673 Date Filed: 11/30/2022 Page: 6
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.
6
Appellate Case: 22-1243 Document: 010110775673 Date Filed: 11/30/2022 Page: 7
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).
7
Appellate Case: 22-1243 Document: 010110775673 Date Filed: 11/30/2022 Page: 8
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
8
Appellate Case: 22-1243 Document: 010110775673 Date Filed: 11/30/2022 Page: 9
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
Appellate Case: 22-1243 Document: 010110775673 Date Filed: 11/30/2022 Page: 10
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.
10
Appellate Case: 22-1243 Document: 010110775673 Date Filed: 11/30/2022 Page: 11
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.
11
Appellate Case: 22-1243 Document: 010110775673 Date Filed: 11/30/2022 Page: 12
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
Appellate Case: 22-1243 Document: 010110775673 Date Filed: 11/30/2022 Page: 13
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
13
Appellate Case: 22-1243 Document: 010110775673 Date Filed: 11/30/2022 Page: 14
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