UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

WILLIAM J. SEARS, 

 Defendant - Appellant. 

No. 22-1243 

(D.C. Nos. 1:21-CV-00141-WJM & 

1:16-CR-00301-WJM-1) 

(D. Colo.) 

_________________________________ 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

_________________________________ 

Before MATHESON, KELLY, and ROSSMAN, Circuit Judges. 

_________________________________ 

William J. Sears pled guilty to securities fraud conspiracy and failing to file a 

tax return. He was sentenced to 96 months in prison. Appearing pro se, he seeks a 

certificate of appealability (“COA”) to challenge the district court’s denial of his 

motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. See 28 

U.S.C. § 2253(c)(1)(B) (requiring a COA to appeal an order denying a petition for 

relief under § 2255). Mr. Sears also seeks leave to proceed in forma pauperis (“ifp”). 

* This order is not binding precedent except under the doctrines of law of the 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 30, 2022

Christopher M. Wolpert 

Clerk of Court

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Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we deny both requests 

and dismiss this matter.1

I. BACKGROUND 

A. Investigation 

In 2014, the Federal Bureau of Investigation (“FBI”) obtained a search warrant 

for a company owned in part by Mr. Sears. The FBI supported its warrant request 

with an affidavit from Special Agent Kate Funk. She said in the affidavit that before 

working for the FBI, she “received an Accounting degree from the University of 

Kansas” and “became a Certified Public Accountant in 1996 through the state of 

Kansas.” ROA, Vol. I at 266 ¶ 1. The affidavit described apparent irregularities in 

the company’s revenue stream suggesting financial malfeasance by Mr. Sears. 

Before the FBI investigation, attorney Frederick Lehrer advised Mr. Sears 

about activities underlying this case. During the investigation, the FBI interviewed 

Mr. Lehrer, who provided incriminating evidence. The Government never disclosed 

to Mr. Sears that Mr. Lehrer and Kenneth Harmon, the Assistant United States 

Attorney (“AUSA”) who prosecuted Mr. Sears, had served together on a securities 

fraud task force in Florida in the 1990s before AUSA Harmon became a federal 

prosecutor. 

1

 Because Mr. Sears is pro se, we “construe his arguments liberally” but do not 

“serve as his advocate.” United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009). 

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B. Guilty Plea, Motion to Withdraw, and Sentencing 

In September 2016, the Government filed an Information, charging Mr. Sears 

with (1) conspiring to commit securities fraud and (2) filing a false tax return. 

In November 2016, Mr. Sears pled guilty to both charges under a plea 

agreement. In the plea agreement, Mr. Sears “knowingly and voluntarily waive[d]” 

the right to appeal his sentence unless it exceeded the statutory maximum. ROA, 

Vol. I at 68. The district court held a change of plea hearing during which Mr. Sears 

confirmed he had reviewed the plea agreement with his attorney, was aware of the 

waiver, and entered the agreement voluntarily. 

In April 2019, Mr. Sears moved to withdraw his guilty plea, alleging the 

Government withheld exculpatory evidence that (1) Special Agent Funk “lied about 

her credentials” as a CPA to obtain the search warrant and (2) there was a connection 

between Mr. Lehrer and AUSA Harmon. ROA, Vol. I at 142-44. The district court 

rejected these arguments and denied Mr. Sears’s motion. 

In January 2020, the district court sentenced Mr. Sears to 96 months in prison. 

He timely appealed, asserting the Government engaged in misconduct and his 

attorney rendered ineffective assistance. The Government moved to enforce the 

appeal waiver in Mr. Sears’s plea agreement. We granted that motion and dismissed 

the appeal. See United States v. Sears, 822 F. App’x 818 (10th Cir. 2020) 

(unpublished). 

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C. Section 2255 Proceedings 

Mr. Sears then filed a motion to vacate, set aside, or correct his sentence under 

28 U.S.C. § 2255. He asserted that his plea agreement was involuntary because he 

was unaware—due to Government misconduct or ineffective assistance from his 

attorney—of Special Agent Funk’s alleged misrepresentations about her CPA status 

and the connection between AUSA Harmon and Mr. Lehrer. Mr. Sears argued this 

violated his rights to due process and effective assistance of counsel. He also 

asserted other claims not at issue here. 

The district court denied the § 2255 motion. It found that “Agent Funk is a 

CPA, and Sears is only questioning the contexts in, and purposes for which, she may 

represent herself as such, under Kansas Law.” ROA, Vol. I at 577 (quotations 

omitted). Also, because any evidence that Special Agent Funk misstated her status as 

a CPA “is, at best, impeachment evidence,” the court held that the Government was 

not required to disclose it before Mr. Sears pled guilty. Id. (quotations omitted). 

As to Mr. Lehrer, the district court observed that Mr. Sears “does not explain 

how any information . . . about any such relationship [between him and AUSA 

Harmon] would lead to anything more than, at best, impeachment evidence,” which 

“[t]he Government had no duty to disclose.” Id. at 578-79. 

The district court declined to issue a COA. Mr. Sears requests this court to 

issue a COA, and he asks to proceed ifp. 

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II. DISCUSSION 

Mr. Sears seeks a COA on whether his plea was involuntary because (1) the 

Government withheld exculpatory evidence in violation of the Fifth Amendment Due 

Process Clause under Brady v. Maryland, 373 U.S. 83 (1963); and (2) his counsel 

was ineffective in failing to discover the exculpatory evidence in violation of the 

Sixth Amendment under Strickland v. Washington, 466 U.S. 668 (1984). 

In support of both claims, Mr. Sears asserts that (1) Special Agent Funk “lied 

about her qualifications as a [CPA] in the affidavit supporting the Government’s 

search warrants,” Aplt. Br. at 8, and (2) Mr. Lehrer lied to the FBI due to his prior 

relationship with AUSA Harmon, id. at 18-19.2

Mr. Sears also argues he should have received an evidentiary hearing in 

district court. 

A. Legal Background 

COA Requirement 

To obtain a COA, Mr. Sears must make a “substantial showing of the denial of 

a constitutional right,” 28 U.S.C. § 2253(c)(2), by demonstrating “that reasonable 

2

 Mr. Sears further suggests the FBI’s search warrant violated his Fourth 

Amendment rights, or that his attorney performed deficiently by failing to move to 

suppress the evidence the warrant produced. See, e.g., Aplt. Br. at 20-21. But 

because Mr. Sears pled guilty, “he may not thereafter raise independent claims 

relating to the deprivation of constitutional rights that occurred prior to the entry of 

the guilty plea. He may attack only the voluntary and intelligent character of the 

guilty plea . . . .” Tollett v. Henderson, 411 U.S. 258, 267 (1973). Thus, Mr. Sears’s 

arguments turn on whether his plea was voluntary. 

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jurists could debate whether . . . the petition should have been resolved in a different 

manner or that the issues were adequate to deserve encouragement to proceed 

further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted). When 

assessing the district court’s denial of a § 2255 motion, “we review the district 

court’s findings of fact for clear error and its conclusions of law de novo.” United 

States v. Rushin, 642 F.3d 1299, 1302 (10th Cir. 2011). 

Knowing and Voluntary Plea 

Mr. Sears argues that his plea was not knowing and voluntary. “The Due 

Process Clause of the Fourteenth Amendment requires that a defendant knowingly 

and voluntarily enter a plea of guilty.” United States v. McIntosh, 29 F.4th 648, 655 

(10th Cir. 2022) (quotations omitted). For a plea to be voluntary, the “defendant’s 

decision to plead guilty must be deliberate and intelligent and chosen from available 

alternatives.” Id. (quotations omitted). 

A defendant may establish that his guilty plea was involuntary if he should 

have been but was not informed of information relevant to his case. If the 

Government failed to disclose material exculpatory evidence or if the defendant’s 

attorney failed to discover that information through a reasonable investigation, the 

defendant may not have “chosen from available alternatives” when he entered a 

guilty plea. Id. 

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B. Analysis 

Involuntary Plea Based on Brady Violation 

a. Additional legal background 

Brady v. Maryland requires the Government to disclose exculpatory evidence 

to criminal defendants. 373 U.S. 83, 87 (1963). “[U]nder certain limited 

circumstances, the prosecution’s violation of Brady can render a defendant’s plea 

involuntary.” United States v. Wright, 43 F.3d 491, 496 (10th Cir. 1994). 

To prove that a Brady violation rendered a plea involuntary, a defendant must 

demonstrate the exculpatory evidence is “material”—that there is “a reasonable 

probability that but for the failure to produce such information the defendant would 

not have entered the plea but instead would have insisted on going to trial.” United 

States v. Walters, 269 F.3d 1207, 1214 (10th Cir. 2001) (quotations omitted). 

“Assessment of [materiality] involves an objective inquiry that asks not what a 

particular defendant would do but rather what is the likely persuasiveness of the 

withheld information.” Id. at 1215 (quotations omitted). In other words, the 

withheld evidence must be significant enough, in the context of the case as a whole, 

to “have affected the outcome of the trial.” United States v. Combs, 267 F.3d 1167, 

1175 (10th Cir. 2001) (quotations omitted). Brady does not “require the Government 

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

criminal defendant.” United States v. Ruiz, 536 U.S. 622, 633 (2002) (emphasis 

added). 

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b. Application 

Mr. Sears argues the Government violated Brady in two ways, rendering his 

plea involuntary. We address each in turn. 

i. Special Agent Funk 

Mr. Sears contends the Government failed to disclose evidence that Special 

Agent Funk “lied to obtain the search warrant.” Aplt. Br. at 8. Special Agent Funk 

represented on the search warrant application affidavit that she graduated from 

college with an accounting degree and “became” a CPA in Kansas. ROA, Vol. I 

at 266 ¶ 1. Mr. Sears asserts Special Agent Funk was not a qualified CPA in Kansas 

because “in order to practice as a CPA (perform or offer to perform services as a 

CPA), a person must . . . provide proof to the Kansas Board of Accountancy of the 

requisite experience requirement, complete a form, pay a fee, and then be subject to 

continuing education requirements.” Aplt. Br. at 10 (citing Kan. Stat. Ann. § 1-316). 

He contends Special Agent Funk had not met these requirements, id. at 8, and that the 

Government should have disclosed this “exculpatory” evidence, id. at 5. We 

disagree. 

Special Agent Funk did not misrepresent her credentials in the affidavit. The 

affidavit said she graduated with an accounting degree and “became” a CPA—not 

that she was currently licensed and practicing as a CPA. Kansas law might limit 

Special Agent Funk’s ability to “perform or offer to perform services as a CPA” to 

the general public, as Mr. Sears suggests, Aplt. Br. at 10, but she did not claim to be 

performing CPA services when she wrote the affidavit. Rather, she used her 

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specialized training to assess Mr. Sears’s company’s finances for investigative 

purposes. See ROA, Vol. I at 266 ¶ 2 (“At all times during the investigation 

described in this affidavit, I have been acting in my official capacity as a Special 

Agent with the FBI.”). 

Additionally, Special Agent Funk’s alleged misrepresentation was, at most, 

impeachment evidence. But Brady does not require the Government to disclose 

impeachment evidence—even if it is material—before entering a plea agreement with 

a criminal defendant. Ruiz, 536 U.S. at 633. 

Finally, even if Mr. Sears should have received information about Special 

Agent Funk’s CPA status from the Government, this evidence would have lacked 

probative value. Under Brady, Mr. Sears must demonstrate the “likely 

persuasiveness of the withheld information” is such that he “would not have entered 

the plea but instead would have insisted on going to trial.” Walters, 269 F.3d at 

1214-15 (quotations omitted); see also United States v. Reed, 39 F.4th 1285, 1293 

(10th Cir. 2022). At most, the information about Special Agent Funk would have 

enabled Mr. Sears to cross-examine her about her CPA qualifications. Mr. Sears has 

not demonstrated a reasonable probability that possessing this information would 

have changed his decision to plead guilty. 

ii. Mr. Lehrer 

Mr. Sears also contends his plea was involuntary because the Government 

wrongfully withheld information about Mr. Lehrer’s “personal relationship with the 

prosecutor.” Aplt. Br. at 19. As discussed, Mr. Lehrer—an attorney who at one 

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point advised Mr. Sears and later gave incriminating evidence to the FBI—once 

served on a task force with AUSA Harmon. Mr. Sears asserts that Mr. Lehrer “lied 

under oath during his discussions with the FBI and prosecutors. His lies are 

verifiably false, and had I known about them prior to pleading guilty, I would not 

have done so . . . .” Aplt. Br. at 18-19. We again disagree. 

Mr. Sears has not shown that Mr. Lehrer’s relationship with AUSA Harmon 

affected his statements to the FBI. Also, the Lehrer-Harmon connection was 

impeachment evidence, which the Government was not required to disclose before 

entering a plea agreement with Mr. Sears. Ruiz, 536 U.S. at 633. Thus, Mr. Lehrer 

has not asserted a viable Brady claim. 

Even if he had, Mr. Sears has not shown that impeachment of Mr. Lehrer 

would have significantly affected his likelihood of success. Absent a reason to 

believe that Mr. Sears “would not have entered the plea but instead would have 

insisted on going to trial” if he possessed information about Mr. Lehrer’s connection 

with AUSA Harmon, Walters, 269 F.3d at 1214, lacking that information did not 

prejudice him. 

* * * * 

 For the foregoing reasons, we conclude that reasonable jurists would not 

debate the district court’s denial of habeas relief based on Mr. Sears’s claim that a 

Brady violation rendered his guilty plea involuntary. We therefore deny a COA on 

this issue. 

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Involuntary Plea Based on Ineffective Assistance 

a. Additional legal background 

Receiving ineffective assistance of counsel may render a defendant’s guilty 

plea involuntary. Reed, 39 F.4th at 1293. “We review a challenge to a guilty plea 

based on a claim of ineffective assistance of counsel using the two-part test 

announced in Strickland v. Washington,” id. (citation and quotations omitted), which 

requires the defendant to show that (1) his attorney performed deficiently and (2) he 

suffered prejudice as a result. Id. 

“To show prejudice in the guilty plea context, the defendant must establish that 

there is a reasonable probability that, but for counsel’s errors, he would not have 

pleaded guilty and insisted on going to trial.” Id. (quotations omitted). “This 

prejudice inquiry . . . of an alleged ‘failure to investigate or discover exculpatory 

evidence’ . . . depends largely on whether the evidence or defense ‘likely would have 

changed the outcome of a trial.’” United States v. Graham, 179 F. App’x 528, 533 

(10th Cir. 2006) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). 

b. Application 

Mr. Sears asserts his plea was involuntary because his attorney failed to 

uncover evidence about Special Agent Funk’s alleged misrepresentations about her 

CPA qualifications and Mr. Lehrer’s alleged connection with AUSA Harmon, 

thereby rendering ineffective assistance. Aplt. Br. at 17-19. These arguments are 

unavailing for much the same reasons as Mr. Sears’s arguments about his Brady

claims. 

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 Mr. Sears has failed to show prejudice. As discussed above, Mr. Sears’s 

assertions about Special Agent Funk’s alleged misrepresentations lack merit, and he 

does not explain how the Lehrer-Harmon connection affected the evidence against 

him. And even if there were merit to these arguments, the information would have 

been at most relatively weak impeachment evidence. Mr. Sears has not shown how 

this evidence “would have changed the outcome of a trial.” Hill, 474 U.S. at 59. He 

thus has not established “a reasonable probability that, but for counsel’s errors, he 

would not have pleaded guilty and insisted on going to trial.” Reed, 39 F.4th at 1293 

(quotations omitted). 

* * * * 

 The foregoing shows that reasonable jurists would not debate the district 

court’s denial of Mr. Frederick’s claim of an involuntary plea based on ineffective 

assistance of counsel. We therefore deny a COA on this issue. 

Evidentiary Hearing 

Mr. Sears contends the district court abused its discretion in declining to hold 

an evidentiary hearing on his § 2255 motion. Aplt. Br. at 4-7. We disagree. 

Section 2255(b) provides that a district court must hold an evidentiary hearing 

on a petitioner’s motion “[u]nless the motion and the files and records of the case 

conclusively show that the prisoner is entitled to no relief.” “We review the district 

court’s refusal to hold an evidentiary hearing for an abuse of discretion.” United 

States v. Moya, 676 F.3d 1211, 1214 (10th Cir. 2012) (quotations omitted). Because 

the district court’s ruling denying an evidentiary hearing would be reviewed for 

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abuse of discretion during a merits appeal, the Supreme Court has accepted a 

formulation of “the COA question” as “whether a reasonable jurist could conclude 

that the District Court abused its discretion.” Buck v. Davis, 137 S. Ct. 759, 777 

(2017) (quoting Slack, 529 U.S. at 484). 

The district court is “not required to hold [an] evidentiary hearing[] [for a 

§ 2255 motion] without a firm idea of what the testimony will encompass and how it 

will support a movant’s claim.” Moya, 676 F.3d at 1214 (quotations omitted). 

Moreover, if the district court, in denying a § 2255 motion, “relate[s] what sources in 

the record it relied on and why it denied” the arguments in the motion, it did not 

abuse its discretion for failing to hold a hearing. United States v. Johnson, 42 F.3d 

1407 (Unpublished Table Decision), 1994 WL 683930, at *2 (10th Cir. 1994) (cited 

for persuasive value under Fed. R. App. P. 32.1; 10th Cir. R. 32.1(A)). 

Where, as here, a petitioner’s habeas claims are capable of being resolved on 

the existing record, there is no entitlement to an evidentiary hearing. Torres v. 

Mullin, 317 F.3d 1145, 1161 (10th Cir. 2003). Mr. Sears does not explain what 

additional evidence he could have presented at a hearing to support his claims. Aplt. 

Br. at 4-7. He has failed to present a “firm idea of what the testimony [at a hearing] 

w[ould] encompass and how it w[ould] support [his] claim.” Moya, 676 F.3d at 

1214. And the district court supported its holdings by identifying the “sources in the 

record it relied on.” Johnson, 1994 WL 683930, at *2. The district court thus did not 

abuse its discretion in declining to grant an evidentiary hearing. We conclude 

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reasonable jurists could not debate that an evidentiary hearing was unnecessary. We 

decline to grant a COA on this issue. 

III. CONCLUSION 

 Mr. Sears has not demonstrated that “reasonable jurists could debate” the 

district court’s denial of his § 2255 motion. Slack, 529 U.S. at 484. Also, he has not 

presented “a reasoned, nonfrivolous argument on the law and facts in support of the 

issues raised on appeal.” DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 

1991). We thus deny his request for a COA, deny his request to proceed ifp, and 

dismiss this matter.3

Entered for the Court 

Scott M. Matheson, Jr. 

Circuit Judge 

3

 Judge Rossman would grant Mr. Sears’s ifp request. 

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