UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. MICHAEL CRAIG COOPER, Defendant - Appellant. No. 13-3326 (D.C. Nos. 2:12-CV-02710-CM & 2:04-CR-20105-CM-JPO-1) (D. Kan.)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before LUCERO , GORSUCH , and MORITZ , Circuit Judges.
Following a six-week trial, a jury convicted Michael Craig Cooper of numerous federal charges arising from hi s role as founder and president of Renaissance, The Tax People, which developed and sold what proved to be a system of fraudulent tax deductions fo r owners of home-based bus inesses. Cooper appealed his convictions and his 240-month sentence. 1 A panel of this court affirmed his

* This order is not binding precedent excep t under the doctrines of law of the case, res judicata, and collatera l estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. A pp. P. 32.1 and 10th Cir. R. 32.1.
1 Cooper was convicted of one count each of conspiracy to defraud the United States, conspiracy to commit mail fraud, and conspiracy to commit wire fraud; seventeen counts of mail fraud; eleven counts of wire fra ud; one count of conspiracy to launder money; forty-one counts of enga ging in monetary transactions in property derived from an unlawful activity; and tw o counts of money laundering. The jury (continued)

FILED United States Court of Appeals Tenth Circuit 

### December 15, 2014
Elisabeth A. Shumaker Clerk of Court- 2 - convictions. United States v. Cooper , 654 F.3d 1104, 1129 (10t h Cir. 2011). Cooper then filed a pro se motion to vacate, set aside, or corr ect his sentence pursuant to 28 U.S.C. § 2255, accompanied by a suppor ting memorandum, a supplemental brief, and a reply (together, the § 2255 Motion). The district court denied the motion on the merits and also denied a certif icate of appealability (COA). Again proceeding pro se, Cooper has applied for a COA from this court (Application) to appeal the denial of hi s § 2255 Motion. Construing Cooper’s pro se filings liberally, see Yang v. Archuleta , 525 F.3d 925, 927 n. 1 (10th Cir. 2008), we deny his request for a COA and dismiss this matter. LEGAL STANDARDS To appeal the denial of his § 2255 Motion, Cooper must obtain a COA.
See 28 U.S.C. § 2253(c)(1)(B). We may issue a COA “only if the applicant has made a substantial showing of the deni al of a constitutional right.” Id. § 2253(c)(2). To make such a showing, Cooper must demons trate “that reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were adequate to dese rve encouragement to proceed further.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (int ernal quotation marks omitted). Cooper seeks a COA on claims that hi s appointed counsel’s performance at trial and, in some respects, on direct a ppeal, was constitutionally ineffective. An

acquitted him of fifty-six counts of assisti ng in the preparation of false tax returns and nineteen counts of mail fraud.- 3 - applicant claiming ineffectiv e assistance of counsel mu st establish “that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” and that “the deficient performance prejudiced the defense.” Strickland v. Washington , 466 U.S. 668, 687 (1984). To establish prejudice, a “defendant must s how that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the pr oceeding would have been different.” Id. at 694. Cooper also contends the district court erred by not holding an evidentiary hearing on many of his claims. “When a fe deral prisoner files a petition for post-conviction relief, the district court must hold an evidentiary hearing on the prisoner’s clai ms ‘unless the motion and th e files and records of the case conclusively show that the pr isoner is entitled to no relief.’” United States v. Galloway , 56 F.3d 1239, 1240 n.1 (10th Cir. 1995) (brack ets omitted) (quoting 28 U.S.C. § 2255(b)). 

### DISCUSSION 1. Speedy Trial Act Cooper first seeks a COA on his claim that his trial counsel was ineffective in failing to move to dismiss the indictment based on a violation of the Speedy Trial Act (STA). The STA generally requi res a federal criminal tria l to begin within seventy days from the date a defendant is charge d or makes an initial appearance, but it excludes certain periods of delay from the calculation. See 18 U.S.C. § 3161(c)(1), (h). The district court denied relief on the ground that Cooper failed to show that- 4 - seventy nonexcludable days el apsed between his initial a ppearance and his trial, and therefore counsel’s performance was not de ficient for failing to file a motion to dismiss. In the alternative, the court concluded that even if Cooper could show an STA violation, he failed to show the result of the proceeding would have been different. The court reasoned th at if counsel had successf ully moved to dismiss the indictment, the dismissal would have b een without prejudice because none of the factors set out in 18 U.S.C. § 3162(a) warranted dismissal with prejudice, 2 and Cooper did not show that the government would have been precluded from refiling the charges. In his Application, Cooper reiterates hi s argument regarding an STA violation. But we need not assess that argument becau se Cooper does not challenge the district court’s alternative prejudice analysis, the correctness of whic h is not reasonably debatable. Accordingly, we deny a COA on this claim. 2. Mistrial/jury taint Cooper next seeks a COA on his claim that his counsel s hould have moved for a mistrial after it came to light during jury deliberations that the jury foreperson had some outside knowledge of the case and ha d informed other jurors that she had caught Cooper in a lie and considered him guilty. The trial court removed the

2 Those factors are “the seriousness of the offense; the fact s and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on th e administration of justice.” 18 U.S.C. § 3162(a)(2).- 5 - foreperson from the jury when these circumst ances came to light. Cooper also faulted counsel for not raising the issue on direct appeal. The district court denied relief on this claim for two reasons. The district court first concluded trial counsel’s performance was not deficient based on counsel’s sworn declaration outlini ng three strategic reasons for not moving for a mistrial: (1) the trial had gone we ll, and the government would improve its preparation of the case the second time around; (2) Cooper strongly believed he could not select a better jury in a second trial; and (3) th e removal of the foreperson emphasized to remaining jurors the need to be fair and im partial. The district court also observed that at trial and in open court, Cooper agreed with the court’s decision to remove the foreperson. The district court further c oncluded Cooper could not show Strickland prejudice because even if his counsel had moved for a mistrial, the district court would have denied it. The court based this conclusion on the fact that after the court removed the jury foreperson, it questione d each remaining juror, and each juror confirmed his or her ability to resolve the case based on the evidence and the court’s instructions. Before us, Cooper reiterat es his claim that his couns el refrained from moving for a mistrial because couns el’s law practice could not afford the additional time necessitated by another six-week trial. Coope r based this assertion on one of several admissions counsel allegedly made to Coop er, as set forth in Cooper’s declaration- 6 - submitted in support of his § 2255 Motion. However, the district court refused to credit the alleged admissions, finding an ab sence of factual supp ort, “such as when the admissions were made, how the admissi ons came about, or the context of the discussion leading to these ad missions.” R., Vol. 1 at 873 n.1. Based on this lack of detail, the court characterized Cooper’s stat ements as “self-serv ing, conclusory, and inherently incredible.” Id. We conclude Cooper has not demonstrat ed any error in the district court’s refusal to credit his declara tion statement regarding counsel ’s alleged self-interest in not moving for a mistrial. In any event, c ounsel’s alleged motivati on is irrelevant in light of the district court’ s conclusion that it would have denied a motion for a mistrial. A COA is not warranted on this claim. 3. Wire fraud jury instruct ion, defective indictment Next, Cooper seeks a COA on his claim that his counsel wa s ineffective in failing to object to a jury instruction rega rding the elements of wire fraud. He argued the instruction required the jury to find only that he used or caused another person to

use an interstate or foreign wire communications facility for the purpose of carrying out a fraudulent scheme, not that an inte rstate or foreign wire transfer had actually taken place , as required by the statute of conv iction, 18 U.S.C. § 1343. Further, Cooper contended the indictment was defec tive because it lacked an allegation that an interstate or foreign wire transfer ha d actually occurred, and he claimed that absent an allegation that a wire transfer actually touched the charging district- 7 - (Kansas), venue was improper. Finally, he argued his counsel was ineffective in failing to raise these i ssues on direct appeal. The district court conclude d Cooper’s counsel was not in effective in failing to object to the instruction because the inst ruction was derived from this circuit’s pattern criminal jury instruct ions. Further, the court concl uded Cooper failed to show prejudice as the government presented ampl e evidence of his gu ilt, including witness testimony, emails, and facsim ile transmissions. For these reasons, the district court rejected Cooper’s argumen ts about the indictment and lack of venue. Cooper does not address the district court’s conclusion re garding counsel’s failure to object to the jury instruction, and we do not find the resolution of that portion of the claim reasonably debatable. Further, all elev en counts of the indictment alleged interstate wire comm unications, ten of which were received in Kansas, so reasonable jurists could not de bate whether counsel was inef fective in fail ing to seek dismissal of either the indict ment as defective or the case for lack of venue. We deny a COA on this claim. Additionally, Cooper contends the govern ment failed to present evidence of wire transfers to the jury. See Brief in Support of Applicat ion at 24. But Cooper did not present this argument in his § 2255 Moti on, either as an in sufficiency complaint or as a claim of ineffec tive assistance of counsel in failing to challenge the sufficiency of the evidence re garding the wire transfers on direct appeal. Because we could not consider this argument on appeal, a COA is not warranted. See Schrock v.- 8 - Wyeth, Inc. , 727 F.3d 1273, 1284 (10th Cir. 2013) (stating that “[a]rguments that were not raised below are waived for purpo ses of appeal,” incl uding “when a litigant changes to a new theory on appeal that fa lls under the same general category as an argument presented [in the district cour t]” (internal quotation marks omitted)). 3 4. Mail fraud jury instruct ion, defective indictment Along the lines of the prev ious claim, Cooper seeks a COA on his claim that counsel was ineffective for fail ing to object to the jury in struction on mail fraud. In relevant part, the instruction required the jury to find that Cooper “mailed something or caused another person to mail something through the United States Postal Service [(Postal Service)] or United Parcel Serv ice for the purpose of carrying out the scheme.” R., Vol. 1 at 392. Cooper argued this instructi on misstated the law as set out in the charging statute, 18 U.S.C. § 1341, which he argued does not criminalize “a person who might ‘cause’ mail matter to be sent or delivered by the Postal Service.” R., Vol. 1 at 727. He claimed the inst ruction permitted th e jury to convict him on a finding that he “merely ‘caused’ someone else to place certain described matter into the post office or a mailing receptacle.” Id.

3 Given our view that this argument w ould be forfeited in an appeal from the denial of Cooper’s § 2255 Motion, we need not determine whether it also would be precluded by res judicata or the law-of-t he-case doctrine based on this court’s rejection of a sufficiency ch allenge to the wire-fraud char ges in his direct appeal. See Cooper , 654 F.3d at 1116-19.- 9 - As with the previous claim, the dist rict court conclude d counsel was not ineffective in failing to object to the instructi on because it was derived from this circuit’s pattern criminal jury instructions, and Coope r has not addressed that conclusion in his Application. The cour t also determined Cooper failed to show prejudice because he was charged with aidi ng and assisting the commission of mail fraud in violation of 18 U.S.C. § 2, im plying it was sufficien t that the evidence showed Cooper caused someone to place so mething in furtherance of the scheme with the Postal Servi ce for delivery. We conclude reas onable jurists could not debate the correctness of the district court’s stated rationales fo r denying relief as to the instruction. Further, we note that the district court’ s rationale is bolstered by a provision in § 1341 that Cooper fails to mention. That provision criminalizes the conduct of a person who “knowingly causes to be deliver ed by mail or [private or commercial interstate] carrier” any matt er or thing for the purpose of executing the fraudulent scheme. We conclude the jury instructi on accurately reflected the statute, and reasonable jurists could not debate whether counsel was ineffective in failing to object to the instruction. As part of this claim, Cooper also ar gued his counsel was in effective in failing to move to dismiss Count 58—mail fraud ar ising from the use of the United Parcel Service (UPS)—because there was no eviden ce at trial to establish that the underlying conduct occurred within the five-y ear statute of limitations or that UPS- 10 - was an “interstate carrier” within the meaning of § 1341. The district court did not address these contentions, but we see no arguable merit in th em. First, as the government pointed out in its response to the § 2255 Motion, Count 58 alleged the use of UPS on August 31, 1999, to deliver an item from Kansas to Missouri, and the original indictment was returned less th an five years later, on August 13, 2004. See United States v. Dunn , 961 F.2d 648, 650 (7th Cir. 1992) (finding no violation of five-year limitations period for mail-fraud char ge when indictment was returned less than five years after date of mailing). Second, although we fi nd no definition of the term “commercial interstate carrier” as us ed in § 1341, Cooper has not advanced, nor can we conceive, an argument that U PS falls outside this statutory term. 5. Summary testimony and exhibits Next, Cooper seeks a COA on his claim th at counsel was inef fective in failing to object to summary testimony and exhib its on the ground that there was no proper foundation and that “the exhibits had no support as to th eir authenticity or relevance.” R., Vol. 1 at 731. The district court denied reli ef because Cooper failed to support his argument by expl aining “how any specific pi ece of evidence lacked foundation, authenticity, or relevance,” id. at 877, and he did not attempt to show prejudice. Cooper’s argument in his Applic ation is similarly deficient, and we therefore conclude he has not shown an entitlement to a C OA on this claim.- 11 - 6. Appellate ineffectiveness In another claim, Cooper argued his at torney was ineffective on direct appeal by failing to present any of the claims ra ised in the § 2255 Motion, specifically referring to the wire- and mail-fraud instruc tions and counsel’s a lleged self-interest in not moving for a mistrial based on the jury foreperson’s statements to other jurors. The district court addressed only those two specific issues, concluding counsel focused on the strongest arguments on ap peal and Cooper failed to demonstrate prejudice because there was no reasonable probability he would have prevailed on appeal as to either the jury-instruction or mistrial issues. In his Application, Cooper targets onl y the two specific issues addressed by the district court. Because we have deni ed a COA on those issues, we conclude the lack of prejudice is dispositive, and a COA is not warranted on this claim. 7. Failure to prepare defense Cooper also seeks a COA on his claim that his trial counsel was ineffective in failing to prepare any defens e, prepare Cooper to testify, make an opening statement, and interview any of the more than 600 pot ential defense witnesses, who would have testified that they endorsed the Renaissance tax system. The district court found no evidence that Cooper identified to his couns el any specific potentia l witness prior to trial and further concluded it was unclear what information an y of the witnesses could have provided th at would specifically relate to the charges or the legality of Cooper’s conduct. The court also noted that, among other things, counsel hired a- 12 - private investigator, billed more than 900 hours over two-and-one-half years of representation, meaningfully cross-examined witn esses, made releva nt and necessary objections, and obtained an acquittal on half of the ch arges. The court further observed that Cooper had not s hown prejudice in any failure to prepare him to testify. A COA is not warranted on this clai m. Even if counsel’s performance was deficient, Cooper’s argumen ts (in both his § 2255 Motion and his Application) lack the specificity required to demonstrate prejudice. 8. Sentencing In another claim, Cooper asserted hi s counsel was ineffective in failing to object to a sentencing enhancement under Apprendi v. New Jersey , 530 U.S. 466 (2000). The district court denied relief on this claim because Cooper did not explain how Apprendi applied to his case and did no t identify any basis supporting a downward departure in sentence. In his Application, Cooper offers no further explanation. Consequently, he ha s not shown entitlement to a COA. 9. Plea agreement The district court conducted an evidentia ry hearing on Coope r’s claim that his counsel did not present him with two plea offers. After heari ng the testimony from counsel and Cooper, who was then represen ted by an attorney, the district court orally ruled from the bench. Based in pa rt on its observation of the witnesses’ demeanor, the court found couns el credible and Cooper not credible. Specifically, the court credited counsel’s te stimony that he had presen ted and explained both plea- 13 - offers (although the explanation of the first came prior to receipt of the written offer), including the elements of the charges, but Cooper adamantly re jected the offers, insisting on his innocence and instructing c ounsel to focus on the trial. R., Vol. 4
at 1083. Notably, the district court specifically commented that although “possibly not completely captured on the written tran script,” Cooper’s testimony appeared “self-serving, deliberate, measured, and calculated. [He] seemed willing to say anything to reduce his sentence.” Id. The court pointed out several inconsistencies in Cooper’s testimony, including that in his or iginal § 2255 declaration, Cooper averred that “at no time prior to my trial did my attorney . . . ever present me with a plea offer from the government.” Id. at 1084. But when confronted at the hearing with two letters conveying the offers to him, Coope r admitted he might have seen them. Consequently, the court conc luded counsel had not render ed deficient performance. The court further determined that ev en if counsel performed deficiently, Cooper was not prejudiced. Although Cooper stated he would have accepted the first plea offer (which included a binding ten-y ear sentence) if couns el had advised him about the “concert of action” theory of c onspiracy, the court f ound Cooper could not have acknowledged his respons ibility in open court as part of accepting a plea offer because he had so adamantly proclaimed his innocence from indictment through appeal, and even continued to dispute at the hearing some of the factual bases set forth in the plea agreements. As to the second plea offer, which included a- 14 - fifteen-year maximum senten ce, Cooper testified he wa s unsure whether he would have accepted it given that he would probably receive a te n- or fifteen-year sentence if found guilty. In his Application, Cooper’s argume nts focus on the fact that counsel’s explanation of the first plea agreement came before receipt of th e written offer, and he faults counsel for not e xplaining the written terms. He also contends his counsel failed to explain the “concer t of action” theory of c onspiracy, which would have altered his view of his own innocence. But the district court foun d credible counsel’s testimony that he explained th at offer and the elements of conspiracy but Cooper was not interested in the offer. Cooper has not shown that reasonable jurists could debate whether the court’s credibility fi ndings were clearly erroneous. See United States v. Rantz , 862 F.2d 808, 810 (10th Ci r. 1988) (reviewing for clear error a district court’s factual findings after an evidentiary hearing) . Nor has he shown th at the court’s legal conclusions are reasonably debatable. We therefore deny a COA on this claim. 10. Cumulative error Finally, Cooper urges us to gran t a COA on cumulative error. “A cumulative-error analysis aggregates all er rors found to be harmless and analyzes whether their cumulativ e effect on the outcome of the tr ial is such that collectively they can no longer be determined to be harmless.” United States v. Toles , 297 F.3d 959, 972 (10th Cir. 2002) (i nternal quotation marks omitted). The only errors to be aggregated are those that we or the di strict court assumed could have involved- 15 - deficient performance by counsel: the STA claim and the “failure to prepare a defense” claim. But as noted above, Cooper has not challenged th e district court’s prejudice analysis on the STA claim, and his arguments regard ing the failure to prepare a defense claim lacked the specifi city to show prejudice. Accordingly, reasonable jurists could not debate whether the cumulativ e effect of those errors substantially impaired Coope r’s right to a fair trial. 4
CONCLUSION For the foregoing reasons, we deny a COA on all claims. We further conclude the district court did not abuse its discre tion in refusing to pr ovide an evidentiary hearing on any claim other than the plea-agreement claim. See United States v. Whalen , 976 F.2d 1346, 1348 (10t h Cir. 1992) (setting fo rth abuse-of-discretion standard of review for deni al of § 2255 evidentiary hear ing). We therefore dismiss this matter. Entered for the Court
Nancy L. Moritz Circuit Judge

4 The district court did not rule on cumu lative error, perhaps because Cooper did not clearly raise the issue in his § 2255 Motion. Instead, he alluded to such error only in his § 2255 reply brief, where he argued the cumulative prejudicial effects of counsel’s alleged failures regarding the jury instructions a nd the mistrial. But because we readily conclude a COA should not be gran ted on cumulative error, we need not determine whether Cooper adequate ly presented the issue to the district court.