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

                                    TENTH CIRCUIT                               October 28, 2014

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

        Plaintiff - Appellee,

 v.                                                            No. 14-1184
                                                    (D. Ct. Nos. 1:11-CV-01054-MSK
 LINDA EDWARDS,                                       and 1:04-CR-00463-MSK-16)
                                                                (D. Colo.)
        Defendant - Appellant.



            ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before HARTZ, McKAY, and MATHESON, Circuit Judges.


       Linda Edwards needs a certificate of appealability (“COA”) to appeal whether the

district court erred in denying her an evidentiary hearing to establish three ineffective

assistance of counsel claims for habeas relief under 28 U.S.C. § 2255. See 28 U.S.C.

§ 2253(c)(1)(B) (requiring a COA to appeal an order denying a § 2255 petition). We

deny COA because Ms. Edwards has not shown “that reasonable jurists could debate

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




       * This order is not binding precedent, except under the doctrines of law of the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.
presented were adequate to deserve encouragement to proceed further.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000).

                                  I. BACKGROUND

                                 A. Indictment and Trial

       A federal grand jury charged Ms. Edwards, a real estate agent, with participating

in a scheme to defraud the U.S. Department of Housing and Urban Development and the

Federal Housing Administration by using false information on home loan applications.

Following a trial, a jury convicted her of six counts of wire fraud, five counts of making

false statements, and two counts of using a false social security number.

       At sentencing, the district court calculated the loss caused by Ms. Edwards’s fraud

to be $460,113.98. The court used the loss calculation to increase Ms. Edwards’s base

offense level by 14 under the applicable Sentencing Guidelines. See U.S.S.G.

§ 2B1.1(b)(1)(H) (2002) (directing 14-level enhancement if fraud causes loss between

$400,000 and $1 million). The court sentenced Ms. Edwards to 41 months in prison,

three years of supervised release, and restitution of over $600,000.

                                    B. Direct Appeal

       Ms. Edwards appealed her conviction and sentence, and we affirmed both. United

States v. Mullins, 613 F.3d 1273 (10th Cir. 2010). She argued the district court erred

when it calculated the term of imprisonment and restitution sentences because it

incorrectly included transaction “1U” in the loss calculation. She contended an

intervening refinancing on the mortgage “meant she was no longer the proximate cause

of any loss.” Id. at 1293-94.


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       We observed her trial counsel failed to object to the district court’s inclusion of the

1U transaction and applied plain error review. We assumed without deciding that even if

it were error to include transaction 1U in the loss calculation, Ms. Edwards had not

carried her burden under plain error review to show “that the error affected her

substantial rights” or “undermined the fairness, integrity, or public reputation of judicial

proceedings.” Id. at 1294.

                                  C. Habeas Proceedings

       While incarcerated, Ms. Edwards filed a pro se motion to vacate her convictions

and sentence under § 2255. She argued her trial counsel failed to challenge the court’s

sentencing decision to the extent it was based on an “erroneous Loss Calculation . . .

causing an illegal sentence of incarceration and restitution to be placed on defendant.”

Mot., ECF No. 2488, ROA, Vol. 1 at 539. She also argued her trial counsel failed to call

various material witnesses who would have supported her claim of innocence. Id. at 542-

43. Her motion also mentioned in passing that “Defendant request[s] in the event of an

evidentiary hearing the suppression of audio/video surveill[a]nce.” Id. at 547.

        The district court sua sponte appointed representation for Ms. Edwards and

authorized counsel to “adopt, supplement or withdraw” her § 2255 motion. Order, ECF

No. 2509, ROA, Vol. 2 at 18. With counsel’s help, Ms. Edwards filed a two-page

supplemental § 2255 motion, Suppl. Mot., ECF No. 2521, ROA, Vol. 2 at 27-28, stating

it “hereby adopts all arguments advanced by Ms. Edwards in support of her ineffective-

assistance-of-counsel claims,” and “withdraws all arguments which are unrelated to the




                                            -3-
ineffective-assistance-of-counsel claims.” Id. at 27. She supplemented her claims with

“additional acts and omissions,” alleging:

               A. Trial counsel failed to properly advise Ms. Edwards regarding her
       right to testify at trial, failed to properly prepare [her to] testify, and failed
       to recommend that she testify.
               B. Trial counsel failed to ask this Court to exclude transaction 1U
       from its loss calculation. If counsel had made such a request, the loss
       would have been less than $400,000, the Guideline range would have been
       lower, and the ultimate sentence would have been lower than the 41-month
       sentence that was imposed.

Id. at 28 (citation omitted). She also requested “an evidentiary hearing in this matter,

pursuant to 28 U.S.C. 2255(b).” Id.

       The Government opposed both the pro se motion and the supplemental motion. It

argued the supplemental right-to-testify claim was untimely, Opp’n to Suppl. Mot., ECF

No. 2531, ROA, Vol. 2 at 54-58, and the loss-calculation claim had already been

disposed of on direct appeal, id. at 58-60. And it contended the failure-to-call-witnesses

claim contained in the pro se motion failed to show deficient performance under

Strickland v. Washington, 466 U.S. 668 (1984). Opp’n to Mot., ECF No. 2500, ROA,

Vol. 1 at 605-07.

       The district court denied habeas relief. It did not discuss Ms. Edwards’s request

for an evidentiary hearing, but implicitly denied it.

                                     II. DISCUSSION

       To challenge the district court’s order denying her request for an evidentiary

hearing, Ms. Edwards must first receive a COA by making “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). She must demonstrate that



                                             -4-
“reasonable jurists could debate whether . . . the petition should have been resolved in a

different manner or that the issues presented were adequate to deserve encouragement to

proceed further.” Slack, 529 U.S. at 484 (quotations omitted).

       “When a federal prisoner files a petition for post-conviction relief, the district

court must hold an evidentiary hearing on the prisoner’s claims ‘[u]nless the motion and

the files and records of the case conclusively show that the prisoner is entitled to no

relief.’” United States v. Galloway, 56 F.3d 1239, 1240 n.1 (10th Cir. 1995) (quoting 28

U.S.C. § 2255(b)); see also United States v. Kennedy, 225 F.3d 1187, 1193 (10th Cir.

2000) (same). A district court errs when it denies an evidentiary hearing on a § 2255

petition only if the court abused its discretion. United States v. Whalen, 976 F.2d 1346,

1348 (10th Cir. 1992).

       Ms. Edwards argues an evidentiary hearing was necessary before the court could

decide whether trial counsel was ineffective by failing to: (A) explain to Ms. Edwards

she had a right to testify, prepare her to testify, and recommend she testify; (B) object to

including the 1U transaction in the trial court’s loss calculation; and (C) call certain

material witnesses.

                              A. The Right-to-Testify Claim

       We conclude reasonable jurists could not debate whether an evidentiary hearing

was needed to resolve the right-to-testify claim because the claim was untimely.

       Ms. Edwards needed to file her § 2255 motion within one year of “the date on

which the judgment of conviction becomes final,” 28 U.S.C. § 2255(f)(1), which was




                                             -5-
October 27, 2011.1 She timely filed her pro se motion on April 21, 2011, but her right-to-

testify claim was contained in her supplemental motion, which was filed outside the one-

year period on April 30, 2012.2

       In the district court, Ms. Edwards conceded the supplemental motion was filed

beyond the one-year statute of limitations period, but argued the right-to-testify claim

was not time-barred because it related back to the claim raised in the pro se motion that

“counsel failed to call material witnesses.” See Reply, ECF No. 2540, ROA, Vol. 2 at 80

(quotations omitted). We disagree.

       The failure-to-call-material-witnesses claim in Ms. Edwards’s pro se § 2255

motion lists third parties who could have been called—it never hints that Ms. Edwards

was one of those witnesses. See Mot., ECF No. 2488, ROA, Vol. 1 at 542-44. Thus, the

right-to-testify claim did not “clarif[y] or amplif[y]” any claim in her original motion, but

instead “seek[s] to add a new claim or to insert a new theory into the case.” United States

v. Espinoza-Saenz, 235 F.3d 501, 504 (10th Cir. 2000); cf. S. Hospitality, Inc. v. Zurich


       1
         We issued our judgment in Ms. Edwards’s direct appeal on July 29, 2010. She
did not seek a writ of certiorari from the Supreme Court. Thus, the statute of limitations
for a § 2255 motion began running on October 27, 2010, and ended one year later on
October 27, 2011. See Clay v. United States, 537 U.S. 522, 525 (2003) (recognizing
when a defendant files a direct appeal, but does not seek certiorari, the conviction
becomes final 90 days after the appellate judgment issues); Sup. Ct. R. 13.1.
       2
        No other tolling provisions apply because the record does not indicate
government action which prevented Ms. Edwards from making a motion, a newly-
recognized right made retroactively applicable, or newly-discovered facts. See 28 U.S.C.
§ 2255(f)(2)-(4). Nor does this case present “extraordinary circumstances” that implicate
equitable tolling. See United States v. Gabaldon, 522 F.3d 1121, 1126 (10th Cir. 2008).



                                            -6-
Am. Ins. Co., 393 F.3d 1137, 1142 (10th Cir. 2004) (“Where a litigant changes to a new

theory on appeal that falls under the same general category as an argument presented to

the trial court or presents a theory that was discussed in a vague and ambiguous way, the

theory will not be considered on appeal.” (quotations omitted)).

       Reasonable jurists could not debate the right-to-testify claim did not relate back

and was therefore untimely. An evidentiary hearing would not change that. A COA is

not warranted.

                                B. Loss-Calculation Claim

       Ms. Edwards also seeks a COA to determine if she should have received an

evidentiary hearing on whether counsel was ineffective for failing to object at sentencing

to inclusion of the 1U transaction in the district court’s loss calculation. Ms. Edwards’s

loss-calculation claim challenges her sentence, which includes her term of imprisonment,

supervised release, and restitution.

       We conclude no reasonable jurist could debate the district court’s rejection of this

claim without holding an evidentiary hearing because (1) any challenge to imprisonment

or supervised release is now moot, and (2) the challenge regarding restitution was

inadequately raised in the district court.

1. Imprisonment and Supervised Release Moot

       Ms. Edwards completed her prison sentence in March 2012. To the extent she

now raises the loss-calculation claim to shorten her term of imprisonment, “it is

obviously no longer possible to provide such relief.” Rhodes v. Judiscak, 676 F.3d 931,

933 (10th Cir. 2012).


                                             -7-
       To the extent she raises the loss-calculation claim to reduce or eliminate her

remaining period of supervised release, she has failed to allege any connection between

the court’s loss calculation and the length of her supervised release. Nor can she claim

her supervised release would have been reduced or eliminated had the district court held

an evidentiary hearing and concluded Ms. Edwards’s term of incarceration was too long

because our precedent “clearly prohibits habeas courts—including this court and the

district court below—from modifying a supervised release term to make up for a too-long

prison sentence.” Id.

       The time to challenge the term of imprisonment or the supervised release has

passed, and Ms. Edwards’s claim in this respect is moot. See id. (“A case becomes moot

when a plaintiff no longer suffers actual injury that can be redressed by a favorable

judicial decision.” (quotations omitted)).

2. Restitution Inadequately Raised

       To the extent Ms. Edwards argues the loss-calculation claim implicates the

“imposition of restitution,” Aplt. Br. at 21, the district court deemed that aspect of the

claim waived. Order, ECF No. 2560, ROA, Vol. 2 at 123-24 n.4 (observing the

supplemental motion clarified Ms. Edwards’s loss-calculation claim, but focused only on

how the loss calculation affected the prison sentence, leading the court to conclude that

“[i]n the absence of a clear and conspicuous argument challenging the restitution amount

on this ground, the Court deems Ms. Edwards to have waived submission of this issue”).

       Ms. Edwards’s pro se motion was a series of memoranda totaling 50 pages and

lacked organization, clear arguments, grammatically correct sentences, and record


                                             -8-
citations to support the asserted facts. See Mot., ECF No. 2488, ROA, Vol. 1 at 535-84.

The motion mentioned the 1U transaction only once within the context of restitution and

the loss-calculation claim, and failed to differentiate whether she challenged her trial

counsel’s effectiveness, the district court’s calculation, or both. See id. at 549. Courts

can construe a pro se litigant’s arguments “liberally,” United States v. Pinson, 584 F.3d

972, 975 (10th Cir. 2009), but here the court asked counsel to clarify Ms. Edwards’s

arguments.

       In the supplemental motion, counsel explained the scope of the vague loss-

calculation claim was limited to challenging the term of imprisonment, which, as we have

concluded, is a moot issue. We agree with the district court that Ms. Edwards did not

adequately raise a claim about the amount of restitution.

                                       *      *      *

       We conclude reasonable jurists could not debate that an evidentiary hearing was

unnecessary. Ms. Edwards’s loss-calculation claim is moot or not adequately raised. A

COA is not warranted.

                         C. The Failure-to-Call-Witnesses Claim

       Ms. Edwards also seeks a COA on whether she should have received an

evidentiary hearing on her claim that counsel was ineffective for not calling certain

witnesses. Because she included this claim in her original motion, it is timely. But we

conclude reasonable jurists could not debate whether the district court’s disposition was

within its range of discretion.




                                            -9-
       In her pro se § 2255 motion, Ms. Edwards proffered that three groups of witnesses

could have shown (1) her conduct posed no risk of loss to the Federal Housing Authority,

(2) she had not participated in the closing or processing of several allegedly improper

home loans, and (3) no false information was offered at some of the home closings. See

Mot., ECF No. 2488, ROA, Vol. 1 at 542-43. Ms. Edwards’s supplemental motion did

not add to the foregoing.

       The district court reviewed the evidence and rejected the proffered testimony,

concluding it was irrelevant and would not have changed the outcome of the trial.

Appellate courts review such decisions not to hold an evidentiary hearing for abuse of

discretion. See Whalen, 976 F.2d at 1348.

       Ms. Edwards first argues the district court erroneously insisted she provide, apart

from the proffers, evidence such as transcripts of the witnesses’ testimony from other

proceedings. The court initially addressed the proffers and concluded they failed to show

ineffective assistance. This suggests that, had the proffers been different, the court may

have concluded otherwise, or perhaps scheduled an evidentiary hearing. But the proffers

fell short absent evidence providing more information and context to show “the

significance of that testimony.” Order, ECF No. 2560, ROA, Vol. 2 at 116. We see no

error in how the district court proceeded because the court gave the proffers full

consideration.

       Ms. Edwards also contends the district court mistakenly concluded the proffered

testimony was irrelevant. The district court judge had presided over the trial and re-

examined all the relevant evidence to place the proffered testimony in context. The court


                                           - 10 -
concluded Ms. Edwards failed to demonstrate “the relevance of such testimony, much

less the prejudicial effect that not adducing such testimony had on the outcome of the

trial.” Id. It explained the proffered testimony does not address the ultimate “question of

whether Ms. Edwards was involved in soliciting or encouraging the buyers’ submission

of false records.” Id. at 117.

       The question here is whether the district court’s failure to hold an evidentiary

hearing fell within its discretion, and Ms. Edwards has not shown otherwise. We

conclude reasonable jurists could not debate whether the district court’s decision not to

conduct an evidentiary hearing on this claim was an abuse of discretion.

                                   III. CONCLUSION

       For the foregoing reasons, we deny Ms. Edwards’s request for COA and dismiss

the matter.

                                          ENTERED FOR THE COURT



                                          Scott M. Matheson, Jr.
                                          Circuit Judge




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