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

                                    TENTH CIRCUIT                           October 20, 2015

                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court

 UNITED STATES OF AMERICA,

        Plaintiff - Appellee,

 v.                                                           No. 15-8030
                                                             (D. Wyoming)
 LAUREN ELIZABETH SCOTT,                          (D.C. Nos. 2:14-CV-00092-SWS and
                                                        1:12-CR-00058-SWS-2)
        Defendant - Appellant.




             ORDER DENYING CERTIFICATE OF APPEALABILITY


Before TYMKOVICH, Chief Judge, HARTZ, and BALDOCK, Circuit Judges.


       Defendant Lauren Elizabeth Scott is in federal prison after pleading guilty to fraud

and money-laundering charges arising from a scheme in which she and others took

money from investors for “wind farm” projects that did not, in fact, exist. Proceeding pro

se, she seeks a certificate of appealability (COA) to appeal the denial of her motion for

relief under 28 U.S.C. § 2255. See 28 U.S.C. § 2253(c)(1)(B) (requiring COA to appeal

denial of relief under § 2255). We deny a COA and dismiss the appeal.

       Because Ms. Scott is proceeding pro se, “we construe [her] pleadings liberally.”

Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003). But “the court cannot

take on the responsibility of serving as the litigant’s attorney in constructing arguments
and searching the record.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840

(10th Cir. 2005). And we have “repeatedly insisted that pro se parties follow the same

rules of procedure that govern other litigants.” Id. (internal quotation marks omitted).

We have done our best to accurately construe Defendant’s claims on appeal, a task made

formidable by her disorganized, vague, and rambling brief.

       Several of Defendant’s apparent claims were not raised in district court and

therefore will not be considered: claims that her plea was involuntary, that her counsel

erroneously told her that she lacked grounds for appeal, and that her counsel failed to

challenge the court’s calculation of loss. See United States v. Viera, 674 F.3d 1214, 1220

(10th Cir. 2012) (“[A]s to issues that were not presented to the district court, we adhere to

our general rule against considering issues for the first time on appeal.”).

       For the remaining claims, we can grant 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

standard requires “a demonstration that . . . includes showing 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) (internal quotation marks

omitted). In other words, the applicant must show that the district court’s resolution of

the constitutional claim was either “debatable or wrong.” Id.

       Defendant raises several claims of ineffective assistance of counsel. To prevail

she must show that “counsel’s representation fell below an objective standard of
                                              2
reasonableness and that but for this ineffective assistance the result would have been

different.” Lasiter v. Thomas, 89 F.3d 699, 703 (10th Cir. 1996) (internal quotations

omitted). In this case Defendant could be asserting ineffective assistance with respect to

her plea or her sentence. We first address her plea.

       “In the guilty plea context, to establish a claim for ineffective assistance of

counsel, a defendant must show that counsel’s performance fell below an objective

standard of reasonableness and that, but for counsel’s error, the defendant would have

insisted upon going to trial.” United States v. Silva, 430 F.3d 1096, 1099 (10th Cir.

2005). In her brief to this court, however, Defendant never explicitly alleges that, but for

errors by counsel, she would have insisted upon going to trial. Nonetheless, we will

address one possible claim. We very liberally construe her statement that her counsel

“never disclosed” to her the possibility of a guidelines sentencing level of 97–121

months’ imprisonment, Aplt. Br. at 20, as an effort to raise her district-court contention

that she would not have pleaded guilty had she known that she could have received a

lengthy sentence.

       That contention has no merit. At her plea hearing Defendant acknowledged that

her counsel had informed her that she likely faced an “advisory guideline range of 108 to

135 months.” Tr. of Hr’g on Change of Plea at 19–20, United States v. Scott, No. 12-CR-

58 (D. Wyo. May 16, 2013). This alone undermines Defendant’s claim. As the Supreme

Court has written:


                                              3
       [T]he representations of the defendant, his lawyer, and the prosecutor at
       such a hearing, as well as any findings made by the judge accepting the
       plea, constitute a formidable barrier in any subsequent collateral
       proceedings. Solemn declarations in open court carry a strong presumption
       of verity. The subsequent presentation of conclusory allegations
       unsupported by specifics is subject to summary dismissal, as are
       contentions that in the face of the record are wholly incredible.

Blackledge v. Allison, 431 U.S. 63, 73–74 (1977).

       Further, even if Defendant’s counsel had misinformed her, “there is no prejudice

from counsel’s inaccurate sentence or parole predictions where the court cured the defect

by providing the proper information.” Lasiter, 89 F.3d at 703. Here, the court informed

Defendant at the plea hearing that her preliminary advisory guideline range was 108–135

months, that her actual range would not be calculated until sentencing, and that “to the

extent that that determination is contrary to your estimate or even this Court’s estimate

today, you would not be able to withdraw your plea of guilt.” R., Vol. 1 at 561–63.

Defendant affirmed her understanding, then pleaded guilty.

       Turning to sentencing, an ineffectiveness claim with respect to sentencing requires

both deficient performance by the attorney and a resulting harsher sentence. See United

States v. Horey, 333 F.3d 1185, 1188 (10th Cir. 2003). Defendant first claims that her

counsel erred in failing to object to the presentence report. She claims that her “counsel

was ineffective in allowing her to be sentenced to information that was not only false, but

apparently fabricated.” Aplt. Br. at 7. For example, she claims that a map was “a key

factor in her presentence report, and was used to support a lengthy sentence.” Id. But

she does not explain how the map affected her sentence. And other than the reference to
                                             4
the map, her brief in this court does not recite what the false statements were. It merely

cross-references district-court pleadings, a practice prohibited by our rules. See 10th Cir.

R. 28.4 (“Incorporating by reference portions of lower court or agency briefs or pleadings

is disapproved and does not satisfy the requirements of Fed. R. App. P. 28(a) and (b).”);

Wardell v. Duncan, 470 F.3d 954, 963‒64 (10th Cir. 2006). Moreover, she has never

attempted to explain how the alleged errors in the presentence report could have

increased her sentence. Indeed, at her sentencing hearing she said that she had reviewed

the presentence report with her counsel and he had been able to answer all her questions.

Similarly, although Defendant “contends that no reasonable attorney would allow an

innocent client to be sentenced to enhancements the court found failed,” Aplt. Br. at 20,

her appellate brief does not list any specific enhancements.

       Defendant also argues that the district court erred by not holding an evidentiary

hearing. It is unclear whether she is complaining of the lack of such a hearing before she

was sentenced, or the lack of a hearing on her § 2255 motion, or both. Regardless, she

has failed to set forth what purpose an evidentiary hearing would serve—what specific

facts would be elicited and why they would matter. She therefore is not entitled to relief

on this claim.

       Defendant next argues that the district court improperly denied her § 2255 motion

without considering a supporting affidavit filed by her brother, codefendant Robert Reed.

Defendant contends that the affidavit and other unnamed “original documents” support

her claim of “actual innocence.” Id. at 2. We have reviewed the affidavit. At most it
                                             5
asserts that Defendant was unaware of the allegedly criminal activity. “[A]ctual

innocence is not an easy showing to make: To be credible, such a claim requires

petitioner to support his allegations of constitutional error with new reliable evidence.”

United States v. Cervini, 379 F.3d 987, 991 (10th Cir. 2004) (internal citation omitted).

Further, this evidence, “when contrasted with the corresponding evidence of guilt,” must

be “powerful enough to convince a court that no reasonable juror would have voted to

convict.” Id. at 992. Such “corresponding evidence of guilt” includes evidence from

“the proceedings that led to Defendant’s conviction,” id., which in this case includes

Defendant’s guilty plea. Under this standard the affidavit hardly suffices to support a

claim of actual innocence. See id. at 993 (“In the face of [Defendant’s admission in the

plea agreement], it simply is not probable that no reasonable juror would find him guilty

beyond a reasonable doubt—no matter what an expert might now say.”).

       Finally, we reject Defendant’s argument that the district judge should have recused

himself. Defendant raised this claim below by joining Reed’s motion for disqualification.

Neither Defendant’s brief in this court nor the recusal motion provides a valid basis for

recusal. They complain primarily about the district court’s rulings. But “adverse rulings

are not in themselves grounds for recusal.” Glass v. Pfeffer, 849 F.2d 1261, 1268

(10th Cir. 1988). Second, to the extent that one can read Defendant to have alleged

extrajudicial bias—perhaps one could so classify the allegations that the district court

“protect[ed] misconduct” and “favor[ed] prosecutors over the public,” Mot. for

Disqualification or Recusal at 12, United States v. Reed, No. 12-CR-058-1-s (D. Wyo.
                                             6
May 7, 2015)—her allegations “are so lacking in particularity and substantiation as to fall

short of establishing the necessary factual predicate for any meaningful review.” United

States v. Cooley, 1 F.3d 985, 995 (10th Cir. 1993).

       Defendant has not shown that a reasonable jurist could debate that the denial of

her § 2255 motion was mistaken. We DENY a COA and DISMISS the appeal. We

DENY all pending motions.

                                          ENTERED FOR THE COURT


                                          Harris L Hartz
                                          Circuit Judge




                                             7
