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

                               TENTH CIRCUIT                               July 3, 2014
                      ___________________________________
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff- Appellee,
                                                           No. 13-3321
                                                (D.C. Nos. 5:13-CV-04057-CM and
v.
                                                      5:09-CR-40086-CM-1)
                                                             (D. Kan.)
JAMES DEWEY MOSER,

      Defendant – Appellant.

                             ___________________________
       ORDER DENYING CERTIFICATE OF APPEALABILITY AND
                      DISMISSING APPEAL
               ____________________________________

Before KELLY, BALDOCK, and BACHARACH, Circuit Judges.
                ____________________________________

      Petitioner James Moser, appearing pro se, was convicted by a jury of numerous

counts of bankruptcy fraud, as well as one count of conspiracy to commit bankruptcy

fraud. He filed the instant 28 U.S.C. § 2255 petition asking the court to vacate or amend

his sentence based on ineffective assistance of counsel. The district court denied relief

and denied his request for a certificate of appealability (COA). Because Moser has failed

to show he was prejudiced in any way by his counsel’s alleged deficiencies, we deny his

COA request, deny his motion to proceed in forma pauperis, and dismiss his appeal.
                                             I.

       A sufficient factual background for Moser’s convictions can be found in United

States v. Moser, 453 F. App’x 762 (10th Cir. 2011), and we have reviewed that case. In

short, at trial and on direct appeal, Moser had argued there was insufficient evidence to

show he willfully concealed assets, in particular, a collection of coins and stamps that he

had pledged as collateral for a loan, because they were in fact business assets of Hallmark

Arabian Farms LLC (HAF), an LLC of which Moser was both a member and a manager.

As such, Moser argued, he had no obligation to report these assets to his bankruptcy

trustee. The jury disagreed and convicted him. We affirmed, holding “a reasonable trier

of fact could have found Mr. Moser guilty of bankruptcy fraud for concealing the coins

and stamps beyond a reasonable doubt.” Id. at 768.

                                            II.

       “Before an appeal may be entertained, a prisoner who was denied habeas relief in

the district court must first seek and obtain a COA from a circuit justice or judge.”

Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003). Under 28 U.S.C. §2253(c), we may

issue a COA “only where a petitioner has made a substantial showing of the denial of a

constitutional right.” Id. (internal citation omitted). To meet this standard, “a petitioner

must show 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.”          Id. (internal citations and

alteration omitted).



                                             2
      Moser’s § 2255 petition essentially argues his trial counsel was ineffective for

failing to sufficiently argue that the assets at issue were in fact business assets of HAF

and that he therefore had no obligation to report them. His petition can be broken down

into two arguments: First, he argues his counsel was deficient for failing to argue that

under Kan. Stat. Ann. § 17-7689 he was no longer a member of HAF at the time he failed

to report the coins and stamps.     Second, he argues his counsel should have gone

“document by document through expert testimony” to show that these assets belonged to

HAF, not him. These arguments must be analyzed under Strickland v. Washington, 466

U.S. 668 (1984), which requires a showing of “both deficient performance by counsel

and prejudice.” Knowles v. Mirzayance, 556 U.S. 111, 112 (2009). Even assuming

Moser could show deficient performance, he fails to show that reasonable jurists could

debate whether he was prejudiced by any deficiency.

                                           A.

      As to Moser’s first argument, true, Kan. Stat. Ann. § 17-7689(a)(2), which

Moser’s counsel nowhere cited, provides that “A person ceases to be a member of a

limited liability company and shall become an assignee . . . [when he] files a voluntary

petition in bankruptcy.” (emphasis added). And Moser filed a voluntary bankruptcy

petition before failing to disclose the assets at issue here. Furthermore, the Supreme

Court recently held, “An attorney’s ignorance of a point of law that is fundamental to his

case combined with his failure to perform basic research on that point is a quintessential

example of unreasonable performance.” Hinton v. Alabama, 134 S. Ct. 1081, 1089

(2014). However, even assuming Moser’s counsel was deficient for failing to argue Kan.

                                            3
Stat. Ann. § 17-7689(a)(2), Moser fails to show that reasonable jurists could debate

whether he was prejudiced by this alleged deficiency.

       To show prejudice, Moser “must show that there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to undermine confidence in

the outcome.” Strickland, 466 U.S. at 694. In arguing prejudice, Moser essentially

repeats his original defense theory, namely that, the assets at issue in his trial were

business assets of HAF and Moser therefore did not need to disclose them. First, we note

that Moser’s counsel did argue at trial that these assets belonged to HAF, not Moser.

Further, we fail to see how the ceasing of Moser’s membership in HAF under Kansas law

would give rise to a reasonable probability of a different result in his case.

        Indeed, even assuming Moser was no longer a member of HAF under Kan. Stat.

Ann. § 17-7689(a)(2), he must then have become an assignee of HAF, and as an assignee

he retained at least some rights to the assets of HAF. See ASSIGNEE, Black’s Law

Dictionary (9th ed. 2009). Moreover, Kan. Stat. Ann. § 17-7689 did not affect his status

as a manager of HAF. Compare Kan. Stat. Ann. § 17-7663(k) (defining “Manager”),

with Kan. Stat. Ann. § 17-7663(l) (defining “Member”) and Kan. Stat. Ann. § 17-7689

(referring only to members). Finally, and probably most damning, Moser previously

admitted he had pledged the coins and stamps at issue as collateral and therefore retained

some interest in them. See Moser, 453 F. App’x 762, 768 (10th Cir. 2011).             For

example, in his “Acknowledgment, Receipt of Collateral and Release,” Moser referred to

these assets as “personal property.” Id. Indeed, “Moser admitted that he [not HAF]

                                              4
pledged the coins and stamps as collateral.” Id. (emphasis added). Given Moser’s own

admissions that the coins and stamps at issue were his personal property, no reasonable

jurist could debate whether Moser was prejudiced by his counsel’s failure to cite Kan.

Stat. Ann. § 17-7689 when arguing Moser was not a member of HAF.

                                           B.

      Moser’s second argument likewise fails under Strickland’s prejudice prong. He

argues his counsel should have gone “document by document through expert testimony”

to show that the assets at issue at his trial belonged to HAF, not him. But he does not

reference a single document that could potentially support this claim. We consistently

reject petitions that refer in conclusory fashion to failures of trial counsel that can be

summarized as a failure to develop a defense theory and a failure to discover and locate

additional witnesses and evidence. Snyder v. Addison, 89 F. App’x 675, 681 (10th Cir.

2004); see also Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (holding that even

pro se plaintiffs must allege sufficient facts on which a recognized legal claim can be

based, and that conclusory allegations will not suffice). Therefore, Moser’s conclusory

allegations do not give rise to any reasonable debate as to whether he was prejudiced

under Strickland.




                                            5
       For the above reasons, we DENY Petitioner’s request for a COA, DENY

Petitioner’s motion to proceed in forma pauperis, and DISMISS his appeal.1



                                          Entered for the Court,



                                          Bobby R. Baldock
                                          United States Circuit Judge




1
  Moser also argued that, although prison officials did not accept his notice of appeal until
one day after the deadline to file it expired, he nevertheless timely filed under the Prison
Mailbox Rule. See Houston v. Lack, 487 U.S. 266, 276 (1988); Price v. Philpot, 420
F.3d 1158, 1163 (10th Cir. 2005). Timely filing of a notice of appeal is a jurisdictional
prerequisite to the hearing of the appeal, see Houston, 487 U.S. at 270, but so is a COA.
Indeed, “until a COA has been issued federal courts of appeals lack jurisdiction to rule on
the merits of appeals from habeas petitioners.” Miller-El, 537 U.S. at 335. Therefore,
because Moser is not entitled to a COA in this case, we lack jurisdiction to decide the
merits of his appeal anyway and need not decide whether he timely filed his notice of
appeal.
                                             6
