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

                                      TENTH CIRCUIT                              June 26, 2013

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

              Plaintiff – Appellee,
                                                               No. 13-5008
v.                                                (D.C. Nos. 4:09-CR-00051-GKF-1 and
                                                        4:11-CV-00114-GKF-PJC)
NOEL LAVERN ELLSBURY,                                        (D. N.D. Okla.)

              Defendant - Appellant.




             ORDER DENYING CERTIFICATE OF APPEALABILITY
                       AND DISMISSING APPEAL


Before HARTZ, O'BRIEN, and GORSUCH, Circuit Judges.


       Under a plea agreement, Noel Ellsbury pled guilty to a controlled substance crime.

He now seeks to appeal from the denial of his motion for post-conviction relief under 28

U.S.C. § 2255. Specifically, he claims the government withheld evidence possibly useful

in impeaching witnesses who were unlikely to be called to testify if his case had gone to

trial. Because he has failed to make “a substantial showing of the denial of a

constitutional right,” 28 U.S.C. § 2253(c)(2), we deny his request for a certificate of

appealability (COA).

       In the agreement, Ellsbury waived his rights to file either a direct appeal or any 28

U.S.C. § 2255 motions, “except for claims based on ineffective assistance of counsel
which challenge the validity of the guilty plea or this waiver.” (R. Vol. I at 85.) In

exchange for his guilty plea the other two counts charged in the indictment were

dismissed. He was sentenced to 188 months.

       He did not appeal but he did file a pro se 28 U.S.C. § 2255 motion to vacate, set

aside, or correct his sentence. In it, he raised a variety of arguments claiming ineffective

assistance of counsel (IAC). The motion was denied. With respect to his IAC

arguments, he does not seek to appeal from the denial.

       However, about two months after he filed his § 2255 motion—but before the judge

ruled on it—Ellsbury supplemented his motion. In his supplementary filing, he alleged

he had learned of police misconduct tainting his arrest and conviction. He also argued

the prosecution had failed to disclose this misconduct as required under Brady v.

Maryland1 and contended this failure undermined the voluntariness of his plea

agreement. He included a letter from a romantic acquaintance, Candis Browning, as an

attachment. In the letter, Browning, who Ellsbury characterizes as a “cooperating

witness,” details her involvement with Tulsa Police Officer Eric Hill. (R. Vol. I at 121.)

In pertinent part, the letter suggests Hill lied to Browning and pursued a sexual

relationship with her to secure her cooperation against Ellsbury.

       Despite this revelation, the judge denied Ellsbury’s motion. As to the Brady

claim, he concluded the allegations were barred by the waiver in the plea agreement, and,




       1
         373 U.S. 83 (1963); see also Smith v. Cain, 132 S. Ct. 627, 630 (2012)
(elaborating on Brady’s requirements).

                                            -2-
in any event, were not timely raised. The judge also denied Ellsbury’s request for a COA

on the Brady issue.2

                                      DISCUSSION

       Ellsbury contends the plea agreement waivers do not bar his Brady claim. To that

end, he argues the prosecution’s failure to disclose Hill’s attempts to coerce and

intimidate Browning, as well as Hill’s involvement in other incidents of alleged police

misconduct, render his guilty plea and plea agreement involuntary. But he fails to

demonstrate how disclosure of the alleged police misconduct could have reasonably

affected his decision to accept the terms of the plea agreement and plead guilty.

       A COA is a jurisdictional prerequisite to our review of a denial of a motion for

post-conviction relief under 28 U.S.C. § 2255. 28 U.S.C. § 2253(a), (c)(2); Miller–El v.

Cockrell, 537 U.S. 322, 336 (2003). We issue 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

means the applicant must present an issue, the proper resolution of which is debatable

among reasonable jurists or “deserve[s] encouragement to proceed further.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000) (quotation marks omitted). To make this

determination, we undertake a preliminary, though not definitive, legal analysis of the

applicant’s claims. See Miller–El, 537 U.S. at 338.

       Although we have construed his pleadings liberally, see Ledbetter v. City of

Topeka, Kan., 318 F.3d 1183, 1187 (10th Cir. 2003), Ellsbury has not made the required

       2
          The judge did, however, grant Ellsbury’s request to proceed without prepayment
of costs and fees on appeal.

                                            -3-
showing. We generally enforce waivers of the right to post-conviction relief under 28

U.S.C. § 2255 when the claim for post-conviction relief “falls within the scope of the

waiver.” United States v. Viera, 674 F.3d 1214, 1217 (10th Cir. 2012); United States v.

Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc). Of course, both the plea and

“related waivers” must be made voluntarily. United States v. Ruiz, 536 U.S. 622, 628

(2002); Viera, 674 F.3d at 1217; Hahn, 359 F.3d at 1325. This means they must be made

“‘knowingly, intelligently, and with sufficient awareness of the relevant circumstances

and likely consequences.’” Ruiz, 536 U.S. at 628 (quoting Brady v. United States, 397

U.S. 742, 748 (1970)). Ellsbury, as the party seeking to set aside the conviction and the

guilty plea on which it was based, bears the burden of showing his plea was not

voluntary. See Hahn, 359 F.3d at 1329.

       The prosecution’s failure to disclose information required under the constitutional

principles announced in Brady v. Maryland can sometimes “render a defendant’s plea

involuntary.” United States v. Wright, 43 F.3d 491, 496 (10th Cir. 1994). But, “the

Constitution does not require the prosecutor to share all useful information with the

defendant.” Ruiz, 536 U.S. at 629. Indeed, the scope of the prosecution’s disclosure

obligations is circumscribed when a defendant waives his right to trial by pleading guilty.

Id. at 628-31.

       There are two key teachings from the cases in this area. First, the prosecution is

not required “to disclose material impeachment evidence prior to entering a plea

agreement with a criminal defendant.” Ruiz, 536 U.S. at 633. Second, with respect to

non-impeachment evidence, a movant challenging the voluntariness of his plea must

                                           -4-
show “‘that but for the failure to produce such information [he] 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) (quoting United States v. Avellino, 136 F.3d 249, 256

(2d Cir. 1998)). For this purpose, we examine the potential persuasiveness of the

withheld information objectively, rather than from the perspective of the movant.

Walters, 269 F.3d at 1215.

       Ellsbury does not explain how disclosure of Browning’s alleged coercion and

intimidation could have made any difference in his decision to plead guilty. On the

contrary, our review of the record suggests Browning had no knowledge relevant to the

prosecution’s case. In its representations to the court, the prosecution indicated no need

or desire to use Browning as a trial witness. Indeed, the methamphetamine Ellsbury was

charged with possessing was found on his person at the time of his arrest on an

outstanding warrant; the prosecutors planned to call only the arresting officers to

establish the elements of the crime.

       Moreover, Ellsbury has cited no record evidence to show Officer Hill was actually

involved in his arrest. Nor have we uncovered such evidence in our review of the record.

Further, if Hill had been involved in Ellsbury’s arrest, Ellsbury alleges no misconduct in

connection with the arrest. In short, disclosures related to the alleged police misconduct

could not have aided Ellsbury in establishing his innocence; therefore, any evidence of

police corruption would have been useful only to impeach police witnesses.

       Because the prosecution had no obligation to disclose impeachment evidence, see

Ruiz, 536 U.S. at 631, 633, Ellsbury possessed all the information he needed to make a

                                            -5-
voluntary decision to plead guilty and to accept the plea agreement. Under these

circumstances, no reasonable jurist would debate the propriety of enforcing the post-

conviction relief waiver contained in the plea agreement.3 See Slack, 529 U.S. at 484.

We DENY Ellsbury’s application for a COA and DISMISS.

                                         Entered by the Court:

                                         Terrence L. O’Brien
                                         United States Circuit Judge




      3
          Because enforcement of the post-conviction relief waiver in the plea agreement
forecloses us from granting Ellsbury the relief he requests, we need not examine whether
the district court correctly concluded his motion was also untimely.

                                           -6-
