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

                                    TENTH CIRCUIT                          January 27, 2014

                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
                                                             No. 13-5124
 v.                                            (D.C. No. 4:11-CV-00181-GKF-PJC and
                                                      4:08-CR-00038-GKF-1)
 BOBBY EUGENE SCOTT, JR.,                                    (N.D. Okla.)
           Defendant - Appellant.



               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before LUCERO, McKAY, and MURPHY, Circuit Judges.


       Bobby Eugene Scott, Jr. requests a certificate of appealability (“COA”) to appeal

the district court’s denial of his 28 U.S.C. § 2255 motion. We deny a COA and dismiss

the appeal.1




       *
         This order is not binding precedent except under the doctrines of law of the case,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.
       1
          The district court noted that Scott was released from prison on December 14,
2011. Because Scott remains subject to supervised release, he remains “in custody” and
is eligible to proceed under § 2255. See United States v. Cervini, 379 F.3d 987, 989 n.1
(10th Cir. 2004).
                                               I

       Tulsa Police Detectives Eric Nelson and Shawn Hickey, and Tulsa County

Sheriff’s Office Corporal Shane Rhames arrested Scott on February 15, 2008, for driving

without a license. Rhames and Hickey proceeded to search the vehicle Scott was driving,

and Hickey located a loaded handgun. Two other officers, Frank Khalil and Jeff

Henderson, witnessed the traffic stop. Scott was charged with one count of possession of

a firearm and ammunition by a convicted felon and one count of possession of a firearm

and ammunition by a person convicted of a crime of domestic violence in violation of 18

U.S.C. §§ 922(g)(1), (g)(9), and 924(a)(2).

       Scott moved to suppress the evidence seized from the vehicle. At the suppression

hearing, Khalil, Nelson, and Rhames testified on behalf of the government. The defense

called Hickey to testify. After the district court denied Scott’s motion to suppress, he

pled guilty pursuant to a conditional plea agreement under which he retained the right to

appeal the suppression issue. The Government dropped the second count of the

indictment at the time of sentencing.

       Scott represented at his change of plea hearing that “all of the representations

contained in [his] petition to enter plea of guilty” were “true, complete and correct.” The

district court judge then walked Scott through the elements of the crime, and he admitted

each. He stated that his guilty plea was made “voluntarily and completely of [his] own

free choice.” The court concluded that “Scott [was] fully competent and capable of


                                              -2-
entering an informed plea, . . . he [was] aware of the nature of the charges and the

consequences of his plea of guilty and . . . his plea of guilty [was] a knowing and

voluntary plea supported by an independent basis in fact containing each of the essential

elements of the offense.” Scott was sentenced to fifty-one months’ imprisonment

followed by three years of supervised release. He did not appeal.

       In March 2011, the Tulsa World News published an article stating that Hickey and

Khalil were named as unindicted co-conspirators in an indictment of Henderson and

another officer. According to the article, Henderson is accused of stealing cash and

drugs; Hickey and Khalil allegedly “relocated” evidence during a warrantless search in

2007. On March 28, 2011, Scott filed a habeas motion pursuant to 28 U.S.C. § 2255,

asserting that if the prosecution had disclosed that Hickey and others “routinely

manufactured evidence, and lied on the witness stand” that he “would probably have

stood trial and been found not guilty.” The district court denied Scott’s § 2255 motion

and denied his request for a COA.

                                              II

       To appeal the district court’s denial of § 2255 relief, Scott must obtain a COA.

§ 2253(c)(1)(B). We will grant a COA only if “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 omitted).


                                             -3-
       Scott argues that relief is appropriate because the Government failed “to disclose

its imputed knowledge of the police corruption.” However, we agree with the district

court that Scott’s arguments are foreclosed by United States v. Ruiz, 536 U.S. 622

(2002). In Ruiz, the Court stated that “the Constitution does not require the Government

to disclose material impeachment evidence prior to entering a plea agreement with a

criminal defendant.” Id. at 633. “When a defendant pleads guilty he or she, of course,

forgoes not only a fair trial, but also other accompanying constitutional guarantees.” Id.

at 629. And the Court ruled that “impeachment information is special in relation to the

fairness of a trial, not in respect to whether a plea is voluntary.” Id. We are bound by the

Supreme Court’s ruling in Ruiz, and thus conclude the district court’s ruling on this point

is not reasonably debatable.2

       Scott also contends that the district court erred in denying his motion without

conducting an evidentiary hearing. An evidentiary hearing on a § 2255 motion is

required “[u]nless the motion and the files and records of the case conclusively show that

the prisoner is entitled to no relief.” § 2255(b). “We review the denial of an evidentiary

hearing in a § 2255 proceeding for an abuse of discretion.” United States v. Clingman,

288 F.3d 1183, 1187 n.4 (10th Cir. 2002). Because the district court appropriately


       2
         In his brief, Scott also argues that his plea agreement is unenforceable. Because
Scott did not raise this argument in his § 2255 motion before the district court, he has
waived it. See O’Connor v. City & Cnty. of Denver, 894 F.2d 1210, 1214 (10th Cir.
1990).


                                            -4-
determined that the record conclusively precludes relief, Scott has not shown an abuse of

discretion.3

                                           III

       For the foregoing reasons, Scott’s request for a COA is DENIED and this appeal

is DISMISSED.

                                                 Entered for the Court



                                                 Carlos F. Lucero
                                                 Circuit Judge




       3
         Scott implies, apparently for the first time on appeal, that Hickey may have
planted the evidence at issue in the suppression hearing. However, the record indicates
that Scott represented he “has never denied that he had the firearm” and has “readily
admitted he possessed the gun.”


                                           -5-
