UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

GERALD R. RISING, JR., a/k/a Gerry 

Rising, 

 Defendant - Appellant. 

No. 14-1518 

(D.C. Nos. 1:13-CV-01056-WYD and 

1:11-CR-00117-WYD-1) 

(D. Colo.) 

_________________________________ 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

_________________________________ 

Before HOLMES, MATHESON, and PHILLIPS, Circuit Judges. 

_________________________________ 

On October 26, 2011, Gerald R. Rising pleaded guilty to one count of mail fraud, 

one count of theft or embezzlement in connection with a healthcare program, and one 

count of money laundering. In his plea agreement, Rising waived his right to appeal 

his sentence; and he also waived his right to collaterally attack his prosecution, 

conviction, or sentence except for any relief from a retroactive change to the 

sentencing guidelines, for denial of the effective assistance of counsel, or for 

prosecutorial misconduct. Ultimately, Rising was sentenced to a below-advisoryguideline sentence of 66 months. Rising did not try to appeal his sentence. 

 *

 This order is not binding precedent, except under the doctrines of law of the 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 

November 23, 2015

Elisabeth A. Shumaker 

Clerk of Court

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On December 2, 2014, Rising filed this 28 U.S.C.§ 2255 motion, raising four 

claims: (1) ineffective assistance of counsel for failing to raise and argue meritorious 

defenses and by advising Rising to plead guilty; (2) prosecutorial misconduct; (3) 

ineffective assistance of counsel resulting in an excessive sentence and failure to 

perfect an appealable error; and (4) actual innocence. On April 15, 2015, Rising filed 

a second motion seeking an order on his § 2255 motion and entry of final judgment 

and, on May 13, 2015, he filed a third. The district court denied Rising’s motions and 

declined to issue a certificate of appealability. Rising has applied to this court for a 

certificate of appealability to challenge the district court’s ruling. We deny that 

request. 

I. Factual and Procedural Background 

On April 4, 2011, a federal grand jury charged Rising with one count of mail 

fraud, one count of theft or embezzlement in connection with a health care program, 

eighteen counts of money laundering, and eighteen counts of aiding or abetting 

money laundering. The charges stemmed from Rising’s ownership and operation of a 

business, Rural Health Plans Initiative Administration (RHPI), a closely held 

Colorado corporation that sold and administered health-benefit and employee-welfare 

plans to various business entities including school districts. Rising and RHPI 

“represented that it would retain part of plan contributions, approximately 20%, for 

administrative costs, and that the remainder was to be held in a designated trust 

account to pay claims . . . and to purchase excess loss or stop-loss coverage . . . 

through established insurance providers like Lloyd’s of London and AIG to cover any 

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claims that exceeded $25,000.” Id. Rising also incorporated RHPI Captive Insurance 

Co., Ltd. (RHPIC) in Anguilla, British West Indies to maintain residual fund 

contributions. Plea Agreement 10. As stipulated in the plea agreement, RHPIC was 

created “to avoid regulation by the Colorado Board of Insurance.” Id. at 11.

In 2003, RHPI began to experience financial problems after incurring “unplanned 

for catastrophic losses.” Tr. of Change of Plea 25. As a solution, Rising used 

incoming premium contributions to fund claims incurred in earlier months. From then 

forward, Rising falsely represented to his customers that RHPI would maintain in 

trust the money each plan holder contributed to its plans and use that money to pay 

claims of each plan’s beneficiaries. He also falsely represented that insurance 

companies, such as Lloyd’s of London and AIG, would provide stop-loss coverage at 

$25,000, meaning that once RHPI had paid out $25,000, one of those insurance 

companies would cover any further medical expenses. In fact, those policies did not 

provide coverage until the medical expenses reached $125,000. Id. Through these 

misrepresentations, RHPI significantly underestimated to its customers the risk that it 

would not be able to pay out claims. 

In 2008 and 2009, Rising “increased his salary in order to siphon monies held by 

RHPIC for the benefit of plan beneficiaries.” Plea Agreement 11. In 2009 and 2010, 

Rising “began to kite checks between various bank accounts he controlled for 

himself, RHPI and RHPIIIC, in order to create a false impression as to the financial 

status of the businesses as he solicited their sale.” Id.; see Tr. of Change of Plea 26

(admitting this fact to the court). Rising also “directed employees to falsely represent 

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to various plan beneficiaries and employers that the claims for health care services 

were in fact paid when they were not . . . .” Plea Agreement 11; see Tr. of Change of 

Plea 27. Additionally, he “directed employees to send balance statements to plan 

employers that falsely represented balances in their accounts because such statements 

were influenced by the issuance of checks that were held at [Rising’s] direction, and 

never sent.” Plea Agreement 11–12. In 2010, Rising had invoices mailed to plan 

employers “that billed and created a false indebtedness to the employers for 

payments RHPIC made of beneficiary and health care provider claims.” Id. at 12.

Rising retained Gregory Goldberg of Holland & Hart to represent him throughout 

the criminal prosecution. See Appellant Rising’s Combined Opening Br. and Appl. 

for a Certificate of Appealability 2. Afterward, Rising cooperated with the 

prosecution, producing his financial records, helping decipher those records, and 

meeting with victims. On October 26, 2011, Rising pleaded guilty to one count of 

mail fraud, one count of theft or embezzlement in connection with a health care 

program, and one count of money laundering. As a part of the plea agreement, the 

parties stipulated that Rising had caused victim losses of more than $2.5 million but 

not more than $7 million. As mentioned, as part of his plea agreement Rising also 

agreed to waive his right under 28 U.S.C. § 2255 to collaterally attack his conviction 

and sentence, except challenges based on a retroactive change in the guidelines, 

ineffective assistance of counsel, or prosecutorial misconduct. 

During the Rule 11 colloquy, Rising explained his criminal conduct to the district 

court and admitted all stipulated facts in the plea agreement. The court advised 

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Rising of the consequences of pleading guilty and thoroughly reviewed with him the 

rights he was waiving. In addition, the court reviewed the plea agreement’s terms 

with Rising, verified that Rising had reviewed the agreement with his attorney, and 

verified that Rising was satisfied with his counsel’s performance. 

Based on the presentence report, which incorporated the parties’ agreed guideline 

calculations, the probation office recommended a sentence of 72 months, below the 

applicable advisory range of 87 to 108 months (resulting from a total offense level 

29, and a criminal history category I). Based on Rising’s “extraordinary” cooperation 

in the investigation, the government recommended a sentence of 60 months. See

Government’s Resp. to Def.’s Mot. for Downward Departure and/or Variance from 

the Sentencing Guidelines Pursuant to U.S.S.G. § 5K2.0 and 18 U.S.C. § 3553(a) 

(Doc. 56) 1–2 (requesting a sentence of no less than 60 months); Tr. of Sentencing 20

(requesting a sentence of 60 months). Rising joined the government in its 60-month 

recommendation. See Mot. for Downward Departure and/or Variance from the 

Sentencing Guidelines Pursuant to U.S.S.G. § 5K2.0 and 18 U.S.C. § 3553(a) 7

(requesting a sentence below 60 months); Tr. of Sentencing 37 (requesting a sentence 

of 60 months). Ultimately, the district court sentenced Rising to 66 months of 

imprisonment. 

On April 22, 2013, Rising filed this 28 U.S.C. § 2255 motion challenging his 

sentence. On August 27, 2013, Rising also filed a Pro Se Motion for Partial Summary 

Judgment, and on September 24, 2013, he filed a Pro Se Motion for an Evidentiary 

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Hearing on Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 USC § 

2255 by a Person in Federal Custody. The government responded and Rising replied. 

Even before the district court ruled on the merits, Rising applied to this court for a 

mandamus order directing the district court to decide his § 2255 motion, which this 

court denied. After this, the district court denied Rising’s motions. In response, on 

December 2, 2014, Rising filed a Pro Se Motion for Reconsideration of This Court’s 

Order Denying Habeas Corpus Relief. The district court dismissed that motion for 

lack of jurisdiction as a second or successive habeas petition. This appeal of the 

initial § 2255 ruling followed. 

II. Discussion 

Because Rising proceeds pro se, we review his pleadings and filings liberally. See 

Haines v. Kerner, 404 U.S. 519. 520–21 (1972); Lewis v. C.I.R., 523 F.3d 1272, 1273 

n.2 (10th Cir. 2008). We must address the jurisdictional prerequisites of whether to 

grant Rising a COA on his claims before we can reach the merits. 28 U.S.C. § 

2253(c)(1)(B); United States v. Tony, 637 F.3d 1153, 1157 (10th Cir. 2011). We will 

issue a COA only “if the [movant] has made a substantial showing of the denial of a 

constitutional right.” § 2253(c)(2). A movant can satisfy this standard by 

demonstrating that “reasonable jurists could debate whether . . . the [§ 2255 motion] 

should have been resolved in a different manner or that the issues presented were 

adequate to deserve encouragement to proceed further.” Tony, 637 F.3d at 1157 

(omission in original) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 

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We conclude that Rising has not made an adequate showing here. Accordingly, 

we deny his request for a COA and dismiss his appeal. 

a. Evidentiary Hearing 

At the outset, we will address Rising’s concerns over the district court’s denial of 

an evidentiary hearing. Section 2255 requires an evidentiary hearing “[u]nless the 

motion and the files and records of the case conclusively show that the prisoner is 

entitled to no relief.” 28 U.S.C. § 2255(b). We review the district court’s decision for 

abuse of discretion. See United States v. Harms, 371 F.3d 1208, 1210 (10th Cir. 

2004); see also United States v. Moya, 676 F.3d 1211, 731 (10th Cir. 2012). “District 

courts are not required to hold evidentiary hearings in collateral attacks without a 

firm idea of what the testimony will encompass and how it will support a movant’s 

claim.” United States v. Cervini, 379 F.3d 987, 994 (10th Cir. 2004). We conclude 

that the district court did not abuse its discretion by denying Rising an evidentiary 

hearing and deciding the case on the existing record. 

 Rising argues that the district court improperly made six findings of fact “without 

conducting an evidentiary hearing, evaluating the facts, and, most importantly, 

providing Rising with the Due Process requirements of the United States 

Constitution.” Appellant Rising’s Combined Opening Br. and Appl. for a Certificate 

of Appealability 1. These six findings are as follows: 

 “I also find that Mr. Rising has raised merely the possibility that his counsel 

made choices pursuant to a business model, not that he actually did.” Dist. Ct. 

Op. 15. 

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 “Indeed, Mr. Rising does not identify any specific instances where his attorney 

Mr. Goldberg was forced to make, or made, choices to Mr. Rising’s 

detriment.” Id. at 16. 

 “I also find that Mr. Rising has not shown that he would have insisted on a trial 

if counsel had done a more thorough investigation. Id. at 19. 

 “Based upon the foregoing, I find no merit to Mr. Rising’s argument that his 

counsel’s failure to investigate or prepare for trial or argue meritorious 

defenses constituted ineffective assistance of counsel.” Id. at 23. 

 “Finally, I find that defense counsel was not ineffective for advising Mr. Rising 

to plead guilty and to cooperate.” Id.

 “I find that Mr. Rising cannot meet his burden of proving he is actually 

innocent under either a freestanding or gateway claim.” Id. at 36. 

We see no problems with any of the listed comments by the district court. We 

note that four of the comments are legal conclusions premised on facts in the record 

(the third, fourth, fifth, and sixth listed above), and the others are comments about the 

insufficiency of the evidence Rising suggests he will offer. 

b. Ineffective Assistance of Counsel 

Rising argues that his trial counsel rendered constitutionally ineffective assistance 

in multiple ways: by failing to raise and argue meritorious defenses, by advising him 

to plead guilty, by continuing his representation despite a conflict of interest, by 

permitting an excessive sentence, and by failing to perfect an appealable error. 

In Strickland v. Washington, the Supreme Court announced a two-part test that 

governs ineffective-assistance-of-counsel claims. 466 U.S. 668, 687 (1984). First, 

“[a] petitioner must show that counsel’s performance was deficient.” Wiggins v. 

Smith, 539 U.S. 510, 521 (2003). Second, a petitioner must show that counsel’s 

deficiency “prejudiced the defense.” Id. 

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“To establish deficient performance, a petitioner must demonstrate that counsel’s 

representation fell below an objective standard of reasonableness.” Id. (internal 

quotation marks omitted); see Strickland, 466 U.S. at 688 (“The proper measure of 

attorney performance remains simply reasonableness under prevailing professional 

norms.”). A petitioner must overcome a “strong presumption that counsel’s conduct 

falls within the wide range of reasonable professional assistance.” Strickland, 466 

U.S. at 689. To establish Strickland’s prejudice component, “[t]he defendant 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.” Id. at 

694. The Strickland analysis applies in the context of guilty pleas as well. See 

Missouri v. Frye, 132 S. Ct. 1399, 1403 (2012). “[A] defendant complaining that 

ineffective assistance led him to accept a plea offer instead of going to trial [must] 

show ‘a reasonable probability that, but for counsel’s errors, he would not have 

pleaded guilty and would have insisted on going to trial.’” Id. (quoting Hill v. 

Lockhart, 474 U. S. 52, 59 (1985)).

Counsel’s performance here was not deficient under any of Rising’s theories. 

i. Failure to note and argue meritorious defenses and rendering 

deficient advice 

Rising asserts that his counsel was deficient in advising him to plead guilty 

and thus to waive valid defenses. Rising complains that “[t]he entire defense was 

centered around negotiating a plea of guilty, nothing else.” See Gerald Rising’s Pro 

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Se Mem. of Args. & Authorities in Supp. of Mot. to Vacate, Set Aside, or Correct 

Sentence Pursuant to 28 USC § 2255 by a Person in Federal Custody 3. Here we have 

no trouble concluding that the advice to plead guilty was strategic (undoubtedly 

weighing as part of the decision the government’s proof of Rising’s guilt) and was 

not “below an objective standard of reasonableness.” Wiggins, 539 U.S. at 521. It 

stands to reason that when faced with strong evidence of guilt, it is sound strategy to 

cooperate with the government to try to gain a better outcome.1

 

Rising ignores the considerable benefits afforded him by the plea agreement. 

For instance, the government agreed not to seek an upward departure, agreed to 

dismiss multiple counts of the indictment, agreed not to pursue certain assets as 

belonging to Linda Sue Rising, recommended a three-level reduction for acceptance 

of responsibility, and ultimately recommended a downward departure based on 

Rising’s cooperation as well as a variant sentence of 60 months. Absent his pleading, 

and even assuming convictions just on the counts to which he pleaded guilty, Rising 

would have faced an advisory sentencing range of 108 to 135 months (based on a 

total offense level of 31 and a criminal history category of I). By pleading, Rising 

reduced his guideline range to 87 to 108 months. And ultimately, based on the 

 1

 On September 30, 2015, Rising filed a Motion for Submission of 

Supplemental Case Authority, citing United States v. Washington, 619 F.3d 1252 

(10th Cir. 2010).We have reviewed Washington and find it provides Rising no help. 

The case distinguishes “ordinary errors in applying the guidelines from complete 

unfamiliarity with their basic structure and mechanics and conclude[s] that the latter 

may amount to ineffective assistance of counsel.” Id. at 1259. Here, the record 

demonstrates that Rising’s counsel was obviously more than familiar with the 

guideline structure. 

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government’s request for a downward departure, Rising received a 66-month 

sentence, a substantial reduction from the sentence he likely would have received had 

he not pleaded guilty and cooperated with the government. 

Rising attempts to raise an ineffective assistance claim based on his counsel’s 

failure to obtain the services of a forensic accountant or otherwise challenge the 

government’s inability to establish a firm loss figure. But “[w]e evaluate conduct 

from counsel’s perspective at the time, not in hindsight.” Hooks v. Workman, 689 F.3d 

1148, 1189 (10th Cir. 2012) (citing Rompilla v. Beard, 545 U.S. 374, 381 (2005)). 

Based on counsel’s statements, it appears that Rising’s records were complex and 

unhelpful to his defense. See Tr. of Sentencing 16 (“Now the records themselves 

amounted to about 70 boxes of financial records, plus some computer records. It was 

massive.”). Rising has not explained how hiring a forensic accountant would have 

been anything but futile. See id. (“[A]fter we tried to make sense of his records and 

his own accountant tried to make sense of his records, they were essentially 

worthless.”). Rising has failed to overcome the “strong presumption” that his 

counsel’s performance was within the range of “reasonable professional assistance.” 

Strickland, 466 U.S. at 689. 

ii. Conflict of Interest 

Rising alleges that defense counsel was ineffective because he suffered from a 

conflict of interest: counsel purportedly followed what Rising now says is his firm’s 

business model—pleading cases rather than trying them. We acknowledge that the 

Sixth Amendment right to representation “includes the right to representation that is 

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free from conflicts of interest.” Gardner v Galetka, 568 F.3d 862, 886 (10th 

Cir.2009). If a conflict is established, prejudice is presumed. Id. at 886. Yet when a 

conflict of interest is raised for the first time on collateral attack, the defendant “must 

demonstrate that an actual conflict of interest adversely affected his lawyer’s 

performance.” Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). 

“An actual conflict of interest results if counsel was forced to make choices 

advancing other interests to the detriment of his client.” United States v. Alvarez 137 

F.3d 1249, 1252 (10th Cir. 1998). “‘[T]o demonstrate an actual conflict of interest, 

the petitioner must be able to point to specific instances in the record which suggest 

an impairment or compromise of his interests for the benefit of another party.’” Id. 

(quoting Danner v. United States, 820 F.2d 1166, 1169 (11th Cir. 1987)). A mere 

possibility of a conflict is insufficient. See Cuyler, 446 U.S. at 50. 

Here, Rising simply states that the law firm’s business model existed and affected 

counsel’s decision making. But he never alleges any specific instances where his 

counsel acted to promote the interests of the firm over his interests. Quite simply, 

Rising has failed to establish an actual conflict. 

iii. Ineffective Assistance Resulting in an Excessive Sentence 

and Failure to Perfect an Appealable Error 

Rising claims that ineffectiveness of counsel led to an excessive sentence and a 

failure to perfect an appealable error. Rising alleges the existence of a “secret 

agreement” between defense counsel and the prosecution to stipulate to $3.5 million 

as the amount of loss that would be used to calculate the guideline range under the 

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Sentencing Guidelines. Rising appears to allege that his counsel was ineffective 

because he did not negotiate a lower figure. As mentioned, in the plea agreement the 

parties stipulated to a loss of more than $2.5 million but not more than $7 million. 

Under the Sentencing Guidelines applicable in this case, losses of more than $2.5 

million but not more than $7 million fall under U.S. Sentencing Guidelines Manual § 

2B1.1(b)(1)(J) (U.S. Sentencing Comm’n 2010), adding 18 levels. Rising’s assertion 

that he provided the government with evidence proving that the loss was less than 

$2.5 million fails the prejudice prong of Strickland since he stipulated on the record 

that his offense involved losses between $2.5 million and $7 million. 

To succeed on his claim that his counsel was ineffective for allowing an 

excessive sentence, Rising must show that his sentence was in fact excessive. 

Rising’s sentence was below his advisory-guideline sentencing range, and we thus 

presume its reasonableness. United States v. Perez-Jiminez, 654 F.3d 1136, 1147 

(10th Cir. 2011). Because Rising’s sentence was properly calculated, he cannot 

succeed on his ineffective-assistance-of-counsel claim based on his receiving an 

excessive sentence. 

c. Prosecutorial Misconduct 

 Rising argues prosecutorial misconduct, specifically that the prosecution erred in 

not presenting exculpatory evidence to the grand jury. Rising’s allegation of 

wrongdoing on the prosecutor’s part is misplaced. “A grand jury investigation is not 

an adversarial process.” United States v. Jones, 160 F.3d 641, 646 (10th Cir. 1998); 

see United States v. Williams, 504 U.S. 36, 51, 55 (1992) (holding that the 

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government need not present exculpatory evidence in its possession to the grand 

jury). Regardless, as the district court pointed out, Rising’s guilty plea precludes 

inquiry into the merits of defenses applicable to the indictment. See Order 31, Nov. 4, 

2014 (citing Tollett v. Henderson, 411 U.S. 258, 266 (1973)). 

d. Actual Innocence 

 Rising argues actual innocence. This claim is precluded by his guilty plea and his 

statements to the district court during the Rule 11 hearing. “When a criminal 

defendant has solemnly admitted in open court that he is in fact guilty of the offense 

with which he is charged, . . . [h]e may only attack the voluntary and intelligent 

character of the guilty plea . . . .” See Tollett, 411 U.S. at 267. As the district court 

correctly notes, Rising has not challenged that he pleaded guilty voluntarily and 

intelligently. When he pleaded guilty, Rising provided the court a factual basis to 

support his guilty plea. Additionally, Rising confirmed to the court that he 

understood he was waiving his right to a trial and his rights at trial. Rising offers no 

additional evidence to support his claim and merely challenges the sufficiency of the 

government’s evidence. That argument is barred. 

III. Conclusion 

Based on the foregoing, we DENY the certificate of appealability. We DENY 

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Rising’s motion for an expedited appeal as moot and DISMISS this appeal. 

Entered for the Court 

Gregory A. Phillips 

Circuit Judge 

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