UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellant,

v. ROBERT A. REED, Defendan t - Appellee. No. 18-8042 (D.C. No. 1:16-CV-00245-SWS and) 1:12-CR-00058-SWS-1 (D. Wyoming)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before HARTZ , McHUGH , and CARSON , Circuit Judges.

Petitioner Robert Reed, a federa l prisoner proceeding pro se, 1 seeks a Certificate of Appealability (“COA”) to challe nge the district court’s dism issal of his 28 U.S.C. § 2255 petition to vacate, set asi de, or correct his sentence. The district court dismissed Mr. Reed’s petition. We deny Mr. R eed’s COA request and dismiss the appeal.

* This order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral esto ppel. It may be cited, however , for its persuasive value consistent with Federal Rule of A ppellate Procedure 32.1 and 10 th Circuit Rule 32.1.

1 Because Mr. Reed is proceeding pr o se, “we liberally construe his filings, but we will not act as his advocate.” James v. Wadas , 724 F.3d 1312, 13 15 (10th Cir. 2013). FILED United States Court of Appeals Tenth Circuit 

### March 28, 2019
Elisabeth A. Shumaker Clerk of Court2 BACKGROUND In 2012, the United States ch arged Mr. Reed and others with cri mes involving a scheme to sell investments in n on-existent wind farm projects. Specifically, in a second superseding indictment, the Gov ernment charged M r. Reed with ni ne counts of mail and wire fraud, money laundering, and conspiracies to commit these crimes. Mr. Reed ultimately pleaded guilty to co nspiracy to commit mail and wire fraud in violation of 18 U.S.C. §§ 1349, 1341, and 1343, and to consp iracy to commit mon ey laundering in violation of 18 U.S.C. § 1956(h). The d istrict court accepted h is plea and sentenced him to a term of 151 months’ impris onment. On direct appeal, Mr. Re ed challenged his conviction, his sentence, and th e district court’s order forfei ting various assets to the United States. We affirmed each of those rulings in United States v. Reed , 602 F. App’x 436 (10th Cir. 2015) (unpublishe d). Addressing the challenge to his conviction, this court determined that the Government h ad presented suffi cient evidenc e that: Defendant exercised control over all the invested funds, most o f which came into accounts he opened as t he sole signatory with the aut hority to withdraw funds for distribution to other members of the conspir acy. He also was responsible for setting up t he many drop boxes used as comp any addresses for collecting and forw arding investor funds to the a ccounts he controlled—drop boxes set up w ith his credit cardand phone number by someone with a name identified as an alias he used for this pur pose. As for solicitation activities, while a G reg Doss ran the “boiler room ” where sales people worked, the sales pitches and what investors should be t old came from Defendant, who also particip ated in periodic conference ca lls to provide investors with informatio n and to answer questions the sales people were not equipped to handle. In addition, in the one illustrati ve example of a defrauded investor detailed at the sentencing hearing, a lett er sent to assure the investor that a (nonexi stent) wind turbine had been purchased with his $250,000 inve stment was written and sent to Mr. Doss’s office by Defendant with the direction that it be cut and pasted and forw arded to the investor under the name of one of Mr. Doss’s staff. Another par ticipant,3 whose various duties included t ravelling to South Dakota to ere ct a sign indicating progress where a wind farm was supposed to be under construction, specifically told an investigator that he “worked for Robert Reed.” Finally, while Defendant i nsisted he was merely a consul tant paid a yearly salary of $125,000 by Mr. D oss, evidence regarding the a ccounts under his sole control showed c ash withdrawals (which, of cours e, only Defendant could make) as well as d irect transfers of funds into his own personal account totaling approx imately $700,000 over a period of just two and one-half years.
Id. at 440–41. During the criminal proceedings and on direct appeal, Mr. Reed was represented by several different a ttorneys. After his initial arrest, the U .S. District Court for the District of Wyoming arraigned M r. Reed on April 5, 2012, at whi ch time an attorney from the Federal Public Defende r’s Office represented Mr. Reed. Four days later, attorney Richard Szekely filed a notice of appearance for himse lf and Utah attorney Sonny Olsen as privately-retain ed counsel for Mr. Reed. But aft er Mr. Reed used Mr. Olsen to send proceeds obtaine d in the fraudulent scheme to Wyoming attorneys including Mr. Szekely, the distric t court excused Mr. Szekely a nd appointed the Federal Public Defender’s Office to represent Mr. Reed. On August 1, 2012, the Wyoming di strict court arraigned Mr. Ree d on a superseding indictment and Assist ant Federal Public Defender Ja mes Barrett appeared as his counsel. Mr. Barrett repres ented Mr. Reed until January 2, 2013, when the district court granted his motion to wit hdraw because M r. Reed had refus ed to communicate with him and had filed a grievance against him with the Wyoming Stat e Bar. The district court then appointed attorney Eric Pa len to represent Mr. Reed beginn ing January 9, 2013.4 After Mr. Reed pleaded guilty, but before he was sentenced, att orney Scott Powers filed a notice of appearance as retained counsel for Mr. Reed. Mr. Palen then moved to withdraw, but the district court denied his motion. As a result , Mr. Palen and Mr. Powers both appeared with Mr. Reed at sen tencing. On direct appeal, Mr . Powers entered an appearance for Mr. Reed b ut later withdrew. After “filing . . . numerous frivolous motions attempting to co llaterally attack in some fashion the valid ity of his conviction and/or sentence,” M r. Reed timely filed his initial § 2255 motion to vacate an d set aside his conviction an d sentence on October 3, 2016. ROA at 220. In his § 2255 motion, Mr. Reed petitioned the district court for relief on three grounds: (1) his plea, c onviction, and sentence violat ed his right to effective assistance of counsel under the Sixth Amendment; (2) he receive d ineffective assistance of counsel during the pretrial, p lea, sentencing, and appeal ph ases of his case; and (3) his conviction and sentence violated the First, Fourth, Fifth, Sixt h, and Eighth Amendments. The district court considered onl y the Sixth Amendment claims i n Mr. Reed’s § 2255 motion, observing that “[r]egar ding asserted violations of the First, Fourth, Fifth and Eighth Amendments[,] . . . Defenda nt offers no specific allegat ions or argument in support.” Id. The district court also conside red and rejected three argument s Mr. Reed raised in other motions: (1) an argument that “he must be re-se ntenced pursuant to Amendment 794 which amended th e commentary governing minor role adjustments under U.S.S.G. § 3B1 .2”; and (2) a request for “discovery in th e form of production of documents and depositions on certa in witnesses, including his a ttorneys Scott Powers and5 Eric Palen and Assistant United States Attorney Lisa Leschuck”; and (3) a “Motion to Set Aside Conviction Due to Allege d Destruction of Evidence.” Id. at 239–40. The district court denied all Mr. Reed’s claims for relief, con cluding: Underlying all of Defendant’s ar guments is his insistence that he committed no crime. However, “De fendant does not cha llenge the factual ba sis of his plea, which conclusively establis hed his guilt with respect to the elements of the charged criminal conspiracy.” [ Reed ,] 602 F. App’x at 438. Defendant has failed to establish his counsel’s representation “fell below an objective standard of reasonablen ess,” and “that there is a rea sonable probability that, but for counsel’ s unprofessional errors, the results of the proceeding would have been different.” [ United States v. Taylor , 454 F.3d 1075, 1079 (10th Cir. 2006).] Bec ause the Court can resolve eac h of Defendant’s ineffective assistan ce of counsel claims on the rec ord, he is not entitled to an evidentiary h earing as he suggests.
Id. at 26. Finally, the district court denied Mr. Reed’s motion to set aside his conviction, reasoning that the motion “raise []d a brand new substantive cla im unrelated to the ineffective assistance of counsel claims which are the subject of his original § 2255 motion” and therefore could not relate back to the filing date of the original § 2255 motion. Id. at 241. Thus, the court concluded the “new claim falls well ou tside the oneyear limitation period applicable to § 2255 motions.” Id. The district court declined to grant a COA on any issue. Id. at 242–43. Mr. Reed responded by filing a se ries of motions with this cour t. Because he had failed to file a combined openi ng brief and application for a c ertificate of appealability by the November 19, 2018 deadline, w e dismissed his appeal on Nove mber 26, 2018, for failure to prosecute. One month la ter, on December 12, 2018, Mr . Reed filed his combined brief and applicationfor a COA. Construing a subseque nt letter from him as a6 motion to reinstate the appeal, w e granted his request and rein stated the appeal. In that order, we also reinstated: (1) Mr. Reed’s Motion for Leave to Proceed on Appeal without Prepayment of Costs or Fees ; (2) Mr. Reed’s Motion for Summary Disposition Due to
Mootness ; (3) Mr. Reed’s Renewed Motion to Correct the Record ; and (4) Mr. Reed’s
Motion to Corr ect the Record . We also “caution[ed] Mr. R eed that any future motions that duplicate motions he has al ready filed in this appeal may be stricken.” Order Reinstating Appeal, at 2 (Dec. 2 1, 2018). Since t hen, Mr. Reed has filed a Motion for Leave to Amend Initial Section 2255 Moti on on Newly Discovered Brady Violations

. ANALYSIS A. Standard of Review Because the district court deni ed Mr. Reed a COA , we lack juris diction to consider the merits of his appeal unl ess we first issue a COA. See 28 U.S.C. § 2253(c)(1)(A);
Miller-El v. Cockrell , 537 U.S. 322, 327 (2003). We w ill issue a COA “only if the applicant has made a substantial showing of the denial of a con stitutional right.” Okyere
v. Rudek , 732 F.3d 1148, 1149 (10th Cir. 2013) (quoting 28 U.S.C. § 225 3(c)(2)). To make such a showing, the petitio ner must demonstrate “that reas onable jurists could debate whether (or, for that ma tter, agree that) the [§ 2255 pe tition] should have been resolved in a different manner or that the issues presented wer e adequate to deserve encouragement to p roceed further.” Id. at 1149–50 (quoting Slack v. McDaniel , 529 U.S. 473, 484 (2000)). Wh ere the “district court has rejected the co nstitutional claims on the merits, the showing required . . . is straightforward: The peti tioner must demonstrate that reasonable jurists woul d find the district court’s assessment o f the constitutional claims7 debatable or wrong.” Slack , 529 U.S. at 484. On the other h and, where the district court has rejected the claims “on pr ocedural grounds without reaching the prisoner’s underlying constitutional claim, ” the petitioner must show “tha t jurists of reason would find it debatable whether the pe tition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the dis trict court was correct in its procedural ruling.” Id. (emphasis added).
B. Discussion On appeal, Mr. Reed does not expre ssly challenge the district c ourt’s conclusions regarding his Sixth Amendment arguments. Instead, he raises thr ee new claims of error: (1) that “[t]he entire case or c ontroversy is moot, and this co urt lacks subject matter jurisdiction; (2) “Breach of the Ple a Agreement”; and (3) “Brad y violations.” Pet’r’s Br. at 1. In addition to these argumen ts, we discern from his briefing two ineffectiveassistance-of-counsel claims: one based on his lack of represen tation on direct appeal and another based on his trial couns el’s failure to object to the G overnment’s alleged nondisclosure of evidence. 2 We address each of these a rguments in turn below.

2 In his Affidavit to Accompany Motion for Permission to Appeal in Forma Pauperis , Mr. Reed listed eight issues on appeal: “Brady violations,” “ Knowing presentation of false evidence,” “ Expired Grand Jury,” “Lack of Jurisdiction,” “failure to hold evidentiary hearing,” “failu re to rule on the issues,” “im proper conversion of supplemental claim as second o r successive,” and “breach of the plea agreement.” But he provides no argument in his bri efing to support his claims of “ Expired Grand Jury” or “failure to rule on the issues,” so we do not consider these cl aims. And because we construe his references to “Kno wing presentation of false evide nce” and “improper conversion of supplemental claim” as parts of his Brady argument, we address these claims in that context.8 1. Mootness Mr. Reed devotes most of his bri efing to an argument that his case is “moot,” citing the “Article III requireme nt that federal courts may only decide actual, ongoing cases or controversies.” 3 He elaborates: This case is moot because the cas e or controversy claimed by pr osecutors, does not, or no longer exists. i .e. a scheme to sell investment s in wind farm projects; taking money to fund w ind farms in Wyoming; lying for money; selling investments in wind farm s to unwitting investors, which make material false promises, includi ng the promise of a 140% return within one year, and the promise that all f unds will be used to construct wind farms in Wyoming. Importantly, none of it ever happened. Pet’r’s Br. at 3. Mr. Reed did not raise this argument before t he district court. Absent extraordinary circum stances, we do not cons ider arguments made for the first time on appeal. United States v. Viera , 674 F.3d 1214, 1220 (10th Ci r. 2012). This rule applies even when “an appellant is atte mpting to raise . . . a new theo ry that falls under the same general category as [a previous] argument.” Id. (quoting McDonald v. Kinder-Morgan,
Inc. , 287 F.3d 992, 9 99 (10th Cir. 2002)). Mindful of this fact, Mr. Reed o bserves that mootness is a jur isdictional issue which “can be raised at any time, including the first time on a ppeal.” Pet’r’s Br. at 28. He is correct that Article III’s “ ‘case or controversy’ requiremen t applies at all stages of review” and that mootness, as a “threshold issue of jurisdictio n,” can be raised at any time. Colo. Off Highway Vehicle Coalition v. U.S. Forest Service , 357 F.3d 1130, 1133

3 Prior to filing his Applica tion for a COA, Mr. Reed filed a Motion for Summary Disposition Due to Mootness . This motion is duplicative o f the arguments in Mr. Reed’s Application for a COA before us a nd is untimely. We therefore d o not consider it.9 (10th Cir. 2004). Contrary to M r. Reed’s argument, however, whe ther a criminal case is moot has nothing to do with the s trength of the Government’s ev idence. Rather, “[a] criminal case is moot only if it is shown that there is no poss ibility that any collateral legal consequences w ill be imposed on the basis of the challeng ed conviction.” Hagos v. Raemisch , 811 F.3d 363, 368 (10th Cir. 2015) (quoting Sibron v. New York , 392 U.S. 40, 57 (1968)). Because Mr. Reed is incar cerated, his conviction un questionably has ongoing legal consequences and this matter is not moot. In any event, even if we were to agree that Mr. Reed’s habeas a ction is moot, Mr. Reed would not be entitled to relief. To the contrary, the proper action for a moot issue on habeas review is dism issal, not a grant of relief. Spencer v. Kemna , 523 U.S. 1, 17 (1998) (noting in a habeas case that “mootness, however it m ay come about, simply deprives us of our power to ac t; there is nothing for us to rem edy, even if we were disposed to do so”); Walker v. United States , 680 F.3d 1205, 12 06 (10th Cir. 2012) (dismissing petition for post- conviction relief as moot). Mr. Reed’s claim is best constr ued not as a mootness argument, but as a sufficiency-of-the-evidence argument. See Jackson v. Virginia , 443 U.S. 307, 318 (1979) (describing the suffi ciency-of-the-evidence inquiry as asking “ whether the record evidence could reasonably suppor t a finding of guilty beyond a reasonable doubt”). But he failed to raise such an argumen t before the district court. See ROA at 242 (“Defendant does not challenge the factual ba sis of his plea, which conclus ively established his guilt with respect to the elements of t he charged criminal conspiracy .” (quoting Reed , 602 F. App’x at 438)). Furthermore, we di scern no extraordinary circum stances justifying10 deviation “from the general rule that we do not address argumen ts presented for the first time on appeal,” United States v. Mora , 293 F.3d 1213, 1216 (10th Cir. 2002), particularly given Mr. Reed’s “ guilty plea admitting the elemen ts of the charged offenses,” Reed , 602 F. App’x at 437; see also United States v. Salazar , 323 F.3d 852, 856 (10th Cir. 2003) (“[A] guilty p lea represents a break in th e chain of events which has preceded it in the criminal proce ss. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claim s relating to the deprivation of constitutional rights that occurred prior to the entry o f the guilty plea.” (quoting Tollett v. Henderson , 411 U.S. 258, 267 (1973)).

2. Breach of the Pl ea Agreement Mr. Reed states that he “cannot bri ef this issue without acces s to the record and transcripts,” which he says he has not received. 4 Pet’r’s Br. at 4. Never theless, “without waiving this issue, and preservi ng the right to amend when [he] obtains access to the record and transcripts,” he summ arizes the argument: Mr. Reed c laims that after he bargained for a provision in his plea agreement to retain his r ight to appeal, “the government immediately sought to enforce an appellate waiver pr ovision of the plea agreement.” Id. But it is unclear how the Gove rnment could have breached the p lea

4 Mr. Reed has repeatedly protested the requirement that he pay for copies of documents. See 28 U.S.C. § 1913 (Judicial Confer ence Schedule of Fees). We add ressed this issue by order on Novembe r 7, 2018, allowing Mr. Reed to f ile his COA application more than three months after the original deadline and noting t hat “[t]hough we are sympathetic to Mr. Reed’s financia l difficulties in paying the copying fee, the fee schedule applies to all litigants .” Order, at 2 (Nov. 7, 2018).11 agreement, given that Mr. Reed did exercise his right to a ppeal his conviction and

sentence. See Reed , 602 F. App’x at 43 7–41. In any event, Mr. Reed did not raise this issue to the district court, s o we decline to consider it for t he first time on appeal. See
Mora , 293 F.3d at 1216.
3. BradyViolations Mr. Reed argues on appeal that “83[] ten-page investment contr acts . . . used throughout [his] case” by the Go vernment “have never been produ ced or turned over.” Pet’r’s Br. at 4. He claims these contracts are both impeachmen t evidence and exculpatory evidence because th ey are “false evidence, and sipl y [sic] do not exist.” 5 Id. In support of this argument, he claims he requested the 83 inve stment contracts from the United States Attorney General p ursuant to the Freedom of Infor mation Act, and in October 2018, the Attorn ey General “confirmed and verified that government, the Attorney General or t he Department of Justice does not, and nev er did possess, and never did obtain any investment contra cts in any wind farm projects.” Id. at 43–44. Mr. Reed did not properly raise this argument before the distr ict court. Although he suggested in his § 2255 moti on to the district court that th e Government withheld evidence, he did so only by argui ng that his counsel performed deficiently by failing to request the allegedly withheld e vidence or to object to various actions by the Government and the trial court. See, e.g. , ROA at 47 (“Counsel unprofe ssionally failed to object to

5 Mr. Reed alternatively claims tha t these 83 investment contrac ts “do not exist,” see Pet’r’s Br. at 4, “never existed,” see id. at 53, and that they were “withheld,” see id. at 26. Because we do not reach the me rits of his argument, we need not attempt to reconcile these conflicting theories.12 Brady violations, specifically ‘investo r documents’ which promised t o place funds into ‘wind farms projects in Wyoming.’”). To be sure, Mr. Reed did file with the district court a “Motio n to Set Aside Conviction Due to Destruction of E vidence or in the Alternative , Motion for Evidentiary Hearing” on October 6, 2017. ROA at 240. In this motion, Mr. Re ed made essentially the same argument he now a sserts to us: that “‘investor documents,’ which were the core of the government case,” “have been concealed and destroyed by pro secutors, thus, depriving Mr. Reed of the right to present exculp atory evidence and in violation of Brady .” ROA at 176. Liberally construi ng this pleading as a § 2255 m otion, see United States v. Nelson , 465 F.3d 1145, 1149 (10th Cir. 2006), the district court decl ined to consider Mr. Reed’s argument, r easoning that the “pleading is n ecessarily a second and successive § 2255 motion, [and] th is Court lacks subject matter jurisdiction to consider it absent the prior authorization of the court of appeals.” ROA at 240–41. The district court further explained that the moti on cannot “be considered simply an amendment to [Mr. Reed’s] existing § 2255 motion” under Federal Rule of Civi l Procedure 15 because it fell outside the one-year per iod of limitation under § 2255 and, as it “raise[d] a brand new substantive claim unrelated t o the ineffective assistance o f counsel claims which are the subject of his original § 22 55 motion,” it could not relate back to the date Mr. Reed filed his original petition. Id. at 241; see Fed. R. Civ. P. 15(c). Mr. Reed filed this petition outs ide the one-year limitation p eriod for filing a § 2255 motion. See 28 U.S.C. § 2255(f)(1). Furthermore, the petition unquestionab ly asserts a new argument distinct from Mr. Reed’s earlier ineffec tive-assistance arguments13 and therefore cannot relate back to the filing date of Mr. Reed ’s original petition. See United States v. Espinoza-Saenz , 235 F.3d 501, 505 (10t h Cir. 2000) (“an untimely amendment to a § 2255 motion” re lates back to the original fili ng date “only if . . . the proposed amendment does not seek to add a new claim or to inser t a new theory into the case.”). Therefore, jurists o f reason would not find it debatab le whether the district court erred in its procedural ruli ng denying Mr. Reed’s petition as a n untimely amendment to his initial § 2255 petition. Accord ingly, we dec line to conside r the merits of Mr. Reed’s new argument for the first time on appeal. 6 See Mora , 293 F.3d at 1216. On March 12, 2019, Mr. Reed sought to supplement his COA appli cation in his Motion for Leave to Amend Initial Section 2255 Motion on Newly Discovered Brady Violations . A careful reading of this motion reveals nothing more than re iteration, and sometimes verbatim repetition, of the Brady argument Mr. Reed alr eady presented to this court. Because supplementati on would be futile, we deny Mr. Ree d’s motion to amend, and we decline to consider his Brady arguments further. Anderson v. Suiters , 499 F.3d 1228, 1238 (10th Cir. 2007) (“A pr oposed amendment is futile if the [petition], as amended, would be subject to dis missal.” (internal quotation ma rks omitted)); see also Moore v. Reynolds , 153 F.3d 1086, 111 6 (10th Cir. 1998) (“Even if Moore had been

6 In the same vein, Mr. Reed assert s for the first time on appea l that the Government’s failure to disclose the 83 investment contracts vi olated the “Jencks Act, Rule 16, Disclosure Orders, ABA model rules, DOJ requirements, and the Constitution.” Pet’r’s Br. at 24. He refers to these provisions vaguely, and o nly in the context of arguing that the Government violated h is rights by failing to disclose the investment contracts. We decline to address these new assertions for the same reasons we decline to address the Brady argument.14 allowed to amend his [§ 2254] p etition to add the claim, the am endment would have been futile because the claim sought t o be added has already been re jected by this court.”).
4. Ineffective Assistance of Counsel Mr. Reed makes two ineffective-a ssistance-of-counsel arguments on appeal: (1) that he was deprived of repr esentation on his direct appeal and (2) that he received ineffective assistance from his l awyers because they failed to request the investment contracts from the Government a nd to object to the Government’s failure to produce them. Mr. Reed did mak e this argument in h is § 2255 petition to the district court. See ROA at 21 (“Counsel failed to . . . object to the fact that no such documents appear in the record and as such, were eith er withheld, in violation of Brady , or never existed and Mr. Reed was sentencedbased upon evidence of criminal conduct that does not exist, was fabricated or withheld by the go vernment.”). The district court rejected both these arguments on the merits. Therefo re, we ask whether the district court’s conclusions on these issues were fairly debatable. Slack , 529 U.S. at 484.

a. Lack of appellate counsel Mr. Reed first argues he was depri ved of counsel on direct appe al because “the Court of Appeals allowed CJA coun sel Palin to withdraw as CJA c ounsel, and allowed CJA counsel Powers to proceed, k nowing full well that Powers wa s disqualified from representing [Mr. Reed] due to di sciplinary and misconduct issu es.” Pet’r’s Br. at 20. He further alleges that after he te rminated Mr. Powers, this court “required [him] to proceed on direct appeal, without counsel.” Id. at 21. The district court rejected this argument, concluding:15 The Defendant . . . cannot credibly claim he was forced to repr esent himself on appeal when Mr. Powers withdr ew because by that time the Def endant had been afforded repr esentation from two co urt-appointed attor neys (Mr. Barrett and Mr. Palen) and therefore clearly knew he could apply for representation on appeal. The r ecord reveals the Defendant know ingly and voluntarily chose to exercise hi s right to represent himself. ROA at 237–38. “[A] defendant wh o exercises his right to appear pro se cannot thereafter complain that the qu ality of his own defense amounted to a deni al of ‘effective assistance of counsel.’” McKaskle v. Wiggins , 465 U.S. 168, 177 n.8 (1984) (quoting Faretta v. California , 422 U.S. 806, 834 n.46 (1975 )). Mr. Reed admits he “sought th e removal of . . . [counsel] Powers,” Pet’r’s Br. at 21, and despite his awa reness of the right to request court-appointed appellate counsel as is evidenced by his numero us changes in counsel throughout his post-conviction odyssey, Mr. Reed did not seek n ew representation. Therefore, no reasonable jurist would find the district court’s rejection of this argument debatable. See Slack , 529 U.S. at 484. b. Failure to object to alleged Brady violations Mr. Reed next argues that Mr. Pa lin rendered ineffective assis tance by “fail[ing] to obtain the prosecutor’s file,” whi ch he claims would have uncov ered Brady violations and shown that the Government la cked evidence of illegal invest ment contracts. See Pet’r’s Br. at 32. The district court rejected this argument, r easoning: Defendant was charged and convi cted of conspiracy to commit fraud— selling investments in wind-farm p rojects that did not exist—ba sed on evidence that he and his co-conspi rators made false promises to convince unwitting victims that their mone y would be used to build wind turbines from which the “investors” would then receive windfall profits . . . . While some “investor documents” were p art of the government’s evidenc e, they were not essential to the governm ent’s case nor did they underm ine the government’s case.16 ROA at 226. The district court c oncluded, “the factual basis of [Mr. Reed’s] guilty plea ‘conclusively established his gu ilt with respect to the element s of the charged criminal conspiracy.’” Id. (quoting Reed , 602 F. App’x at 438 ). Addressing Mr. Reed’s claim that he would not have pleaded guilty h ad counsel informed him of th e Government’s allegedly faulty evidence, the d istrict court observed that Mr. Reed “fails to explain . . . how any such facts would have d ecisively negated or rebutted th e government’s evidence as it relates to any element o f the charged mail/wire fraud con spiracy and money laundering conspiracy crimes” o r “how his belief in the existen ce of the allegedly nonexistent original documents prejudiced him in any way.” Id. at 227. Indeed, “[o]ne can be guilty of a conspiracy to commit an offense without committing the substantive offense itself.” United States v. Lake , 472 F.3d 1247, 1263 (10th Cir. 2007). Mr. Reed never challenges the factual basis of h is guilty plea. As we determin ed in Mr. Reed’s direct appeal, this factual basis “conclusively established his guilt with respect to the elements of the charged criminal conspiracy.” Reed , 602 F. App’x 438. Furthermore, “actual ineffectiveness claims alleging a deficie ncy in attorney performance are subject to a gene ral requirement that the defen dant affirmatively prove prejudice.” Strickland v. Washington , 466 U.S. 668, 693 (1984 ). “[W]hen a defendant who has pleaded guilty brings an ineffectiv e-assistance claim, he must ‘show that there is a reasonable probability that, b ut for counsel’s errors, he wou ld not have pleaded guilty and would have insiste d on going to trial.’” United States v. Moya , 676 F.3d 1211, 1213 (10th Cir. 2012) (quoting Hill v. Lockhart , 474 U.S. 52, 59 (1985)). E ven assuming all of17 Mr. Reed’s claims about the 83 in vestment contracts to be true, he cannot c onvincingly argue that his attorney’s failu re to disclose these contracts p rejudiced him. Nothing in these contracts disproves the e ssential elements of the crimes to which Mr. R eed pleaded guilty. Where Mr. Reed has not sho wn that any of this alleged e vidence would have disproved his guilt, he cannot sh ow that he would not have plea ded guilty had his attorneys discovered it. Therefore, the distr ict court’s conclu sion that Mr. Reed failed to show ineffective assi stance is not fairly debatable. See Slack , 529 U.S. at 484.
CONCLUSION Mr. Reed has not demonstrated tha t the district court’s assessm ent of any of his constitutional claims is debatable or wrong. See id. Therefore, we DENY his request for a COA and DISMISS this appeal. 7
Entered for the Court
Carolyn B. McHugh Circuit Judge

7 Before filing his Application for a COA, Mr. Reed filed a Motion to Correct the Record and a Renewed Motion to Correct the Record , repeating almost verbatim the arguments he now asserts regard ing the 83 investment contracts and requesting that we “order the Clerk of the Distri ct Court to immediately correct t he record to include the government’s evidence used in th e district court.” Mot. to Corr ect the Record at 22. Because we decline to grant a COA on any o f the issues Mr. Reedasserts, we also dismiss these motions as moot. Mr. Reed has also filed a Motion for Leave to Pro ceed on Appeal without Prepayment of Costs or Fees . But he has not given “a reas oned, nonfrivolous argument on the law and facts in support of the issues raised on appeal, ” McIntosh v. U.S. Parole Comm’n , 115 F.3d 809, 812 (10th Cir. 19 97) (quotation marks omitted). We therefore deny his application to p roceed in forma pauperis.