UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. KEN EJIMOFOR EZEAH, Defendant - Appellant. No. 21-6165 (D.C. Nos. 5:19-CV-00939-D & 5:16-CR-00029-D-1) (W.D. Okla.)

________________ _________________ ORDER

________________ _________________ Before PHILLIPS , MURPHY , and EID , Circuit Judges.

________________ _________________ This matter is before the court on Appellant’s Petition for Panel Rehearing (“Petition”). Pursuant to Fed. R. App. P. 40, we grant panel reh earing in part to the extent of the modifications in the attached revise d Order Denying Certif icate of Appealability. The remainder of the relief requested in the Petition is denied. Our May 26, 2022 order d eclining to issue a certific ate of appealability and dismissing this appeal is withdrawn and replac ed by the attached re vised version, which shall be filed as of today’s date. Because our decision to partially grant panel rehearing does not affect the outcome of this appeal, Appe llant may not file a second or successive FILED United States Court of Appeals Tenth Circuit 

### June 30, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 21-6165 Document: 010110704001 Date Filed: 06/30/2022 Page: 12 rehearing petition. See 10th Cir. R. 40.3.
Entered for the Court,

CHRISTOPHER M. WOLPERT, Clerk Appellate Case: 21-6165 Document: 010110704001 Date Filed: 06/30/2022 Page: 2UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. KEN EJIMOFOR EZEAH, Defendant - Appellant. No. 21-6165 (D.C. Nos. 5:19-CV-00939-D & 5:16-CR-00029-D-1) (W.D. Okla.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before PHILLIPS , MURPHY , and EID , Circuit Judges.

________________ _________________ Defendant-Appellant Ken E jimofor Ezeah seeks a cer tificate of appealability (“COA”) to challenge the district court’ s denial of his 28 U. S.C. § 2255 motion. Exercising jurisdiction under 28 U.S.C. §§ 12 91 and 2253, we decline to issue a COA and dismiss this matter.
BACKGROUND Based on a superseding indictment, Ezea h was charged with twenty counts of conspiracy, wire fraud, and aggravated identity theft. He later accepted a plea agreement with an appeal waiver. In ex change for pleading guilty to one count of conspiracy to

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. FILED United States Court of Appeals Tenth Circuit 

### June 30, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 21-6165 Document: 010110704001 Date Filed: 06/30/2022 Page: 32 commit wire fraud, the government dismisse d the remaining counts and recommended a three-level sentencing reduction fo r acceptance of responsibility. At his change-of-plea hearing, Ezeah told the district court that he had reviewed the terms of the plea agreement with his attorney, that he un derstood the terms, and that the plea agreement encompassed the full scope of his arrange ment with the government. The district court found that Ezeah had pleaded voluntarily a nd accepted his guilty plea. Before his sentencing, Ezeah moved fo r a downward variance. He pointed to, among other things, the fact that he cooperat ed with the government by testifying against his co-defendant. But Ezeah ac knowledged in his motion for a downward variance that his “cooperation and testimony were not requ ired by his plea agr eement; rather, it was voluntary.” R. vol. 3 at 424 (internal citations omitted). Ezeah also admitted, through counsel, at the sentencing he aring that he had decided to cooperate “for [the] right reasons, not just for sentencing reasons.” R. vol. 1 at 235. The district court sentenced Ezeah to 13 2 months’ imprisonment—the middle of his guideline range of 121–151 months. As the district court was announcing the sentence, Ezeah fainted, leading to the court to adjourn the hearing. When the parties reco nvened a week later to conti nue the sentencing, Ezeah asked to withdraw his guilty plea. He insisted that the government had fra udulently induced his guilty plea by promising to move for a reduction under § 5K1.1, 1 which it failed to do. In

1 Through a § 5K1.1 motion, the government may ask a district court to depart from the guidelines if a de fendant “has provided subs tantial assistance in the investigation or prosecution of another who has committed an offense.” U.S.S.G. ch. 5, pt. K, § 5K1.1. Appellate Case: 21-6165 Document: 010110704001 Date Filed: 06/30/2022 Page: 43 response, the government advised the court that it had promised only to recommend a three-level reduction for acceptance of respon sibility. The district court sided with the government, rejected Ezeah’s request to withdraw his guilty plea, and entered its previously announced sentence. Ezeah appealed his sentence. In United States v. Ezeah , 738 F. App’x 591, 594 (10th Cir. 2018), we held that the governme nt “was not obligated to move for the reduction claimed by Mr. Ezeah, and it theref ore ha[d] not breached the plea agreement.” So we enforced the appeal wa iver and dismissed his appeal. Id. at 595. Still, we recognized that the wa iver contained an exception for cl aims of ineffective assistance of counsel. Id. at 594. Thus, we noted that Ezeah wa s not barred from filing a § 2255 motion to contest his guilty plea and sentence. Id. at 594. Ezeah then filed a § 2255 moti on. He argued that his atto rney had been ineffective by failing to advise the district court that th e government had, in an unwritten promise, agreed to move for a sentence reduction under § 5K1.1 at hi s sentencing. To support his motion, Ezeah submitted his own affidavit and one from his br other. The latter included a text message from Ezeah’s attorney that said , in part, “Ken [Ezeah] will have possibly two opportunities to give s ubstantial assistance which ma y result in a reduction of sentence if he pleads guilty.” R. vol. 2 at 3 06. The district court denied Ezeah’s § 2255 motion without an evidentia ry hearing and refused to issue him a COA. Ezeah now appeals, arguing that, at mini mum, he is entitled to an evidentiary hearing. He also seeks a COA. Appellate Case: 21-6165 Document: 010110704001 Date Filed: 06/30/2022 Page: 54 DISCUSSION
I. Standard of Review Ezeah must obtain a COA to pursue an appeal. 28 U.S.C. § 2253(c)(1)(B). We will issue a COA “only if the applicant has made substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard is satisfied when a prisoner shows that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolv ed in a different manner.” Welch v. United States , 578 U.S. 120, 127 (2016) (quoting Slack v. McDaniel , 529 U.S. 473, 484 (2000)).
II. Merits When a defendant challenges his guilty plea based on a claim of ineffective assistance of counsel, he must show: (1) that his attorney’s performance “fell below an objective standard of reasonableness”; and (2) that “the deficient performance prejudiced the defense.” United States v. Weeks , 653 F.3d 1188, 1200–01 (10th Cir. 2011) (quoting Strickland v. Washington , 466 U.S. 466, 687–88 (1984)). “Solemn declarations in op en court carry a strong presumption of verity.” Blackledge v. Allison , 431 U.S. 63, 74 (1977). Indeed , “the representations of the defendant, his lawyer, and the prosecutor at [p lea hearings], as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings.” Id. at 73–74. We have also held th at the “truth and accuracy” of statements made at plea proceed ings “should be regarded as conclusive in the absence of a believable, valid reason” that would justify departing from them. Hedman v. United
States , 527 F.2d 20, 22 (10th Cir. 1975). Appellate Case: 21-6165 Document: 010110704001 Date Filed: 06/30/2022 Page: 65 Here, the district court found that Ez eah’s “self-serving, post-hoc statements” could not overcome the “formidable barrier” presented by his own de clarations, those of his attorney, and those of the government at his plea hearing. R. vol. 2 at 339, 341 (citation omitted). This was so, the court reas oned, because Ezeah’s version of events would require Ezeah’s attorney and the governm ent to have “lied to the Court about the contents of the plea agreement,” and for Ezea h to have “perjured hi mself when describing his understanding of the plea agr eement.” R. vol. 2 at 339. We agree. As the district court correc tly pointed out, Ezeah’s cooperation was “a means of arguing for leniency”—not an unw ritten agreement for the government to submit a motion based on substantial assistance. R. vol. 2 at 341. In fact, Ezeah stated that his “cooperation and testimony were not required by his plea agreement; rather, it was voluntary.” R. vol. 3 at 424 (internal citations omitted). On top of that, at his sentencing hearing, he assured th e district court, through coun sel, that he had decided to cooperate “for [the] right reasons, not just for sentencing reasons.” R. vol. 1 at 235; see also Blackledge , 431 U.S. at 74 (“Solemn declarati ons in open court carry a strong presumption of verity.”). Ezeah’s two affi davits don’t overcome th e “strong presumption of verity” that we place on these statements. Blackledge , 431 U.S. at 74. To the extent that Ezeah ar gues that the district cour t erred by de nying his § 2255 motion without an eviden tiary hearing, we see no abuse of discretion. 2 No evidentiary

2 In a § 2255 proceeding, we review the denial of an evidentiary hearing for an abuse of discretion. United States v. Clingman , 288 F.3d 1183, 1187 n. 4 (10th Cir. 2002). Appellate Case: 21-6165 Document: 010110704001 Date Filed: 06/30/2022 Page: 76 hearing is needed when the “t he district court finds the case record conclusively shows the prisoner is entitled to no relief.” United States v. Marr , 856 F.2d 1471, 1472 (10th Cir. 1988); see also 28 U.S.C. § 2255(b). As we’ve explained above, the record demonstrates that Ezeah is not entitled to relief. 3
CONCLUSION For these reasons, we deny Ezeah’s reque st for a COA and dismiss this matter.

Entered for the Court
Gregory A. Phillips Circuit Judge

3 The Supreme Court has noted that wh en a defendant’s motion is based on a claim “that not only his own tran scribed responses, but those given by two lawyers, were untruthful,” he will be entitled “to an evidentiary hearing onl y in the most extraordinary circumstances.” Blackledge , 431 U.S. at 80 n.19. Such circ umstances aren’t present here. Appellate Case: 21-6165 Document: 010110704001 Date Filed: 06/30/2022 Page: 8