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

                                     TENTH CIRCUIT                          October 21, 2016

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

             Plaintiff - Appellee,

v.                                                          No. 15-4194
                                              (D.C. Nos. 2:15-CV-00214-TC and 2:12-
DAVID YOUNG,                                          CR-00502-TC-DBP-1)
                                                             (D. Utah)
             Defendant - Appellant.




            ORDER DENYING CERTIFICATE OF APPEALABILITY
                      AND DISMISSING APPEAL


Before HARTZ, O’BRIEN, and PHILLIPS, Circuit Judges.


      In 2007, David Young was serving in Afghanistan as a Lieutenant Colonel in the

United States Army.1 In that capacity he was privy to confidential information

concerning a government contract to train Afghan forces in weapons maintenance and

property book management. He provided that privileged information to his friends and

co-defendants, Michael Taylor and Christopher Harris. The information enabled Taylor’s

company, American International Security Corporation (American International), to

secure the contract. Harris and American International paid Young handsomely for his

      1
        Young retired from the Army in January 2012 after completing five combat
tours. He served most of his active duty in the Special Forces. He has a master’s degree
in psychology and a juris doctorate degree.
efforts ($9 million).

       Young twice admitted to criminal conduct, first in pleading guilty to disclosure of

procurement information and money laundering2 and second in his statement accepting

responsibility, pinning his hopes on a lenient sentence. He did not file a direct appeal.

Nevertheless his 28 U.S.C. § 2255 motion3 now claims his guilty plea was invalid for

three reasons: ineffective assistance of counsel, the government’s failure to turn over

exculpatory information in violation of Brady v. Maryland, 373 U.S. 83 (1963), and

prosecutorial misconduct. He also claims to be actually innocent.

       The district judge denied the motion because Young had not established

ineffective assistance of counsel. Young claimed his counsel had not conducted a

thorough pre-trial investigation of exculpatory evidence and witnesses, but the judge

decided the claim was inadequately supported, actually conclusory. She also noted

Young’s failure to inform her at his change of plea hearing of any dissatisfaction with

counsel; to the contrary, he told her he was “very satisfied” with counsel. (R. Vol. 4 at

32.)



       2
        Young was initially indicted with over 50 counts. He eventually pled guilty to a
two-count information. In the plea agreement, the parties agreed to a sentence between
36 and 48 months. The plea agreement contained a waiver of the right to appeal the
sentence unless it exceeded 48 months imprisonment. Young was sentenced to 42
months imprisonment.
       3
         Young’s first pro se amended § 2255 motion is the operative document. The
judge later appointed counsel to represent him, but no amendments were sought by
counsel. Young filed a pro se motion for leave to file a second amended § 2255 motion,
see infra at 5-6. The judge did not rule on that motion. Appointed counsel continues to
represent him in his request for a certificate of appealability.

                                            -2-
       Young also failed to show how his claims of prosecutorial misconduct4 or the

government’s failure to turn over exculpatory (Brady) or other material information

improperly influenced his guilty plea. At the time of his guilty plea Young had most of

the documents he now claims prove his innocence. Moreover, at that critical time Young

had a pending motion to compel discovery, asking for the very documents he now

maintains the government withheld. Rather than continue a quest for disclosure, he chose

to plead guilty. Not surprisingly, the judge considered the claims against the government

and its attorneys to be “disingenuous.” (Id. at 27.) Not only that, he did not state with

any specificity what the allegedly withheld documents would have shown or which ones

contain exculpatory evidence. “In effect, Mr. Young is asking the court to speculate,

which the court may not do.” (Id. at 28.)

       Finally, she rejected his claim of actual innocence:

       Mr. Young’s lengthy explanation in [his § 2255 motion] of why he is actually
       innocent is simply an attempt to recast the evidence in a new light. The evidence
       that Mr. Young maintains is proof of his innocence is not newly discovered
       evidence nor has Mr. Young shown that it is exculpatory. Mr. Young was assisted
       by very competent attorneys. He entered a knowing and voluntary plea of guilty.
       Mr. Young is bound by his guilty plea.

(Id. at 35.)

       Young did not request a certificate of appealability (COA) from the district court.

But, as he acknowledges, a COA is a jurisdictional prerequisite to our review of a petition

for a writ of habeas corpus. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). We will

       4
       Relevant here, Young’s prosecutorial misconduct claim was based on the
government’s alleged failure to turn over exculpatory evidence—the same conduct
forming his Brady claim—and its alleged failure to search for and obtain documents.

                                            -3-
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). To make such a showing, an applicant

must demonstrate “that reasonable jurists could debate whether (or, for that matter, agree

that) the petition should have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed further.” Slack v.

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

       Young’s main complaint is that the judge denied his § 2255 motion without

allowing discovery and without holding an evidentiary hearing. He says both were

required because his § 2255 motion alleged sufficient facts, which, if proven, would show

his guilty plea to have been neither knowing nor intelligent (for the three stated reasons)

and his actual innocence.

       But habeas petitioners are “not entitled to discovery as a matter of ordinary

course.” Curtis v. Chester, 626 F.3d 540, 549 (10th Cir. 2010) (quotation marks

omitted). Instead, judges have the discretion to allow discovery in a § 2255 proceeding if

the petitioner demonstrates “good cause” for it, that is, where the petitioner “has set forth

good reason to believe he may be able to demonstrate he is entitled to relief.” Id.; see

also Rule 6(a) of the Rules Governing § 2255 Proceedings. Similarly, § 2255 does not

require an evidentiary hearing if “the motion and the files and records of the case

conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). We

have thoroughly reviewed the record and the district court’s decision. Simply stated, the

materials Young points to as proof of his innocence fail to do so. And his claim that

other, unspecified exculpatory evidence exists is conclusory and speculative. On that

                                            -4-
state of the trial record he was not entitled to more discovery or an evidentiary hearing.

Moreover, counsel cannot be deemed ineffective for failing to tilt at windmills. Finally,

and most importantly, his claim of innocence is belied by his repeated admission of guilt,

which the district judge found to be knowing and voluntary. His convenient

acknowledgment of guilt (when seeking reduced charges and a lenient sentence) is

damning and his attempt now to undo those admissions is transparent—a clear case of

buyer’s remorse, little more.

       Young also faults the judge for not ruling on his motion seeking leave to file a

second amended § 2255 motion. His motion offered two reasons. First, he wanted to

supplement his § 2255 motion with co-defendant Taylor’s sentencing memorandum

which alleged that the information the other co-defendant, Harris, provided to Taylor

concerning the amount of the opposing bid was inaccurate. Young claims this evidence

shows he did not disclose that information to Harris. But a co-defendant’s sentencing

memorandum is hardly compelling evidence and the district judge was obviously aware

of it (for what it is worth) because it was filed before Young filed his § 2255 motions.

But there is a more damning problem. Assuming Young did not disclose the amount of

the opposing bid, that assumption does not detract from his disclosure of other

confidential information sufficient to sustain his conviction—disclosure to which he

twice admitted.5 Second, Young sought to amend his § 2255 motion to provide “new



       5
          The information to which he pled guilty charged him with disclosing “contractor
bid and proposal information” and “source selection information.” (R. Vol. 3 at 199.) In
his letter accepting responsibility, he admitted to disclosing (1) the staff summary sheet

                                            -5-
information” showing the government intentionally avoided taking possession of Brady

material. (R. Vol. 2 at 190.) But the only new information he pointed to was an

attachment to the government’s response to his § 2255 motion, a matter to which the

judge was obviously privy. All other allegations were conclusory and speculative. Any

further amendment of the motion would have been futile. Cf. Jefferson Cty. Sch. Dist.

No. R-1 v. Moody’s Inv’r’s Servs., Inc., 175 F.3d 848, 859 (10th Cir. 1999) (denial of

leave to amend is appropriate when the proposed amendment would be futile). We are

loath to conduct a review of inconsequential oversights.

       As a last gasp, Young wants us to supplement the record with a pro se Fed. R. Civ.

P. 59(e) motion he presented to the district court clerk’s office but was not accepted for

filing. He also asks us to remand to the district court for the judge to consider the motion

in the first instance. We decline to do either. Since Young attempted to file the motion

while he was still represented by appointed counsel, he violated Rule 83-1.3(d) of the

District of Utah’s local civil rules, which prohibits a represented party from acting on his

own behalf. Moreover, we generally decline to allow the record to be supplemented with

documents not filed with the district court. Fed. R. App. P. 10(a),(e); see also United

States v. Kennedy, 225 F.3d 1187, 1191-93 (10th Cir. 2000). We see no reason to depart

from that rule here.

       No reasonable jurist could debate the propriety of the district judge’s procedural or

substantive rulings in this case. Therefore, we DENY a COA and DISMISS this matter.


with an attached statement of work document, (2) the source selection criteria, and (3) the
weapons maintenance technical evaluation packet.

                                            -6-
       Young’s request to proceed on appeal in forma pauperis or ifp is DENIED AS

MOOT. Since we have reached the merits of his request for a COA, prepayment of fees

is no longer an issue. In any event, the relevant statute, 28 U.S.C. § 1915 (a), does not

permit litigants to avoid payment of fees; only prepayment of fees is excused.

Accordingly, Young is required to pay all filing and docketing fees ($505.00). Payment

must be made to the Clerk of the District Court.



                                          Entered by the Court:


                                          Terrence L. O’Brien
                                          United States Circuit Judge




                                            -7-
