FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                January 6, 2015
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                  Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

 v.                                                    No. 14-4087
                                               (D.C. No. 2:13-CV-00830-TC)
 JAYSON MICHAEL PAUL DAHL,                             (D. of Utah)

             Defendant-Appellee.


           ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges. **


      Jayson Michael Paul Dahl, a federal prisoner, seeks a certificate of

appealability (COA) to appeal the denial of his 28 U.S.C. § 2255 petition. He

contends that the district court abused its discretion in denying him discovery and

an evidentiary hearing. Exercising jurisdiction under 28 U.S.C. § 1291, we deny

a COA and dismiss this appeal.



      *
         This order is not binding precedent except under the doctrines of law of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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
                                 I. Background

      Dahl pleaded guilty to federal charges of possession of methamphetamine

with intent to distribute and was sentenced to 92 months’ imprisonment. At no

point in his criminal case did Dahl challenge the officers’ version of the events

leading to his arrest or raise a constitutional challenge. He did not file a direct

appeal.

      He filed this habeas petition, however, after discovering several of the

officers involved in his arrest were under investigation for corruption and one

officer had a criminal history. The government’s failure to disclose this evidence,

he argued, was a violation of his right to obtain exculpatory evidence as required

by Brady v. Maryland, 

(1963). He claims if he had obtained this

evidence he would not have pleaded guilty, thus rendering his plea involuntary.

Dahl also moved for discovery of the employment and disciplinary records of the

officers.

      The district court denied Dahl’s discovery request and later denied his

habeas petition without holding an evidentiary hearing. The district court also

denied Dahl’s request for a COA.




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                                  II. Discussion

      Dahl now asks this court for a COA on the issue of whether the district

court erred in denying discovery and a hearing. 1 We review both denials for

abuse of discretion, United States v. Flood, 

, 1290 (10th Cir. 2013),

and we will not issue a COA absent “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2).

      The district court did not abuse its discretion in ruling on Dahl’s petition

without holding an evidentiary hearing. Section 2255 does not require an

evidentiary hearing where “the motion and the files and the records of the case

conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b);

see also 

. After careful review, we find the record below

conclusively establishes Dahl is not entitled to relief.

      While we have recognized that “under certain limited circumstances, the

prosecution’s violation of Brady can render a defendant’s plea involuntary,”

United States v. Wright, 

, 496 (10th Cir. 1994), the government’s duty

to disclose in the context of a guilty plea extends only to material exculpatory

evidence. See United States v. Ruiz, 

, 633 (2002); see also United

States v. Ellsbury, 528 F. App’x 856, 858 (10th Cir. 2013). The district court


      1
         Dahl sought a COA from the district court on a third issue, “[w]hether the
government’s withholding of exculpatory and impeachment evidence justifies
relief.” R., Vol. I at 136. This issue is absent from Dahl’s application for a COA
in this court, see Aplt. Br. at 1, and we limit our review accordingly.

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found the evidence of the alleged officer misconduct was best characterized as

impeachment evidence and thus the government had no duty to disclose.

      On appeal, Dahl argues the evidence is also material exculpatory evidence

because it would have been admissible under Federal Rule of Evidence 404(b) as

proof of the officers’ motive and plan. Specifically, he contends that had this

evidence been available to him, he would have foregone a guilty plea and sought

to suppress the methamphetamine. As the basis for suppression, he alleges for the

first time in this collateral proceeding that the traffic stop, the subsequent

searches of his car and home, and his interrogation were plagued by constitutional

infirmities. He did not seek suppression initially, he claims, because he did not

think a judge would believe him, a criminal and a drug addict, over police

officers.

      We need not determine whether the alleged evidence of the officers’ past

conduct is exculpatory—a proposition we find doubtful 2—because whether

      2
         While not binding precedent, in United States v. Dighera, 217 F. App’x
826, 828 (10th Cir. 2007), a panel of this court found that evidence of officers’
alleged prior misconduct would at best provide the defendant impeachment
evidence. See also Ellsbury, 528 F. App’x at 859 (“In short, disclosures related
to the alleged police misconduct could not have aided Ellsbury in establishing his
innocence; therefore, any evidence of police corruption would have been useful
only to impeach police witnesses.”).

      Moreover, although we need not reach the extent to which evidence used in
a suppression hearing is exculpatory for Brady purposes, we note that Dahl’s only
proposed use of the evidence is in a hypothetical suppression hearing. He does
not contend, for example, that he would have proceeded to trial or that the
                                                                     (continued...)

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characterized as exculpatory or impeaching, we agree with the district court that

the evidence was not material to Dahl’s guilt or punishment. To establish a Brady

violation, the evidence must not only be favorable to the defendant as exculpatory

evidence, it must also be material to the defendant’s guilt or punishment. United

States v. Walters, 

, 1214 (10th Cir. 2001); see also Ellsbury, 528 F.

App’x at 858. “In the context of an attack on the validity of a plea, evidence is

considered material where 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.” 

(internal quotation marks omitted). This is “an objective inquiry that asks not

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

of the withheld information.” 

      Dahl points to no objective evidence that, had he obtained this evidence, he

would have foregone the plea and gone to trial, or as he argues, forgone his guilty

plea and filed a suppression motion. As the district court noted, Dahl “did not

challenge the officers’ statements during his criminal case or in the [p]resentence

      2
       (...continued)
evidence would tend to establish his innocence of the crime to which he pleaded
guilty. And “[s]uppression hearings do not determine a defendant’s guilt or
punishment, yet Brady rests on the idea that due process is violated when the
withheld evidence is material to either guilt or punishment.’” United States v.
Lee Vang Lor, 

, 1256 n.2 (10th Cir. 2013) (quoting United States v.
Bowie, 

, 912 (D.C. Cir. 1999)) (internal quotation marks omitted);
see also 

disclosure requirements even apply at the motion
to suppress stage is an open question.”).

                                         -5-
report.” R., Vol. 1 at 133. There is no hint in the record that Dahl ever alleged

the officers violated his constitutional rights until now. Nor is the evidence so

persuasive on its face that it “could reasonably be taken to put the whole case in

such a different light as to undermine confidence in the verdict.” Kyles v.

Whitley, 

, 435 (1995). Accordingly, the evidence is not material and

the district court did not abuse its discretion in denying relief without holding an

evidentiary hearing. We therefore deny a COA on this issue.

      For much the same reason, we find no abuse of discretion in the district

court’s denial of discovery. As a habeas petitioner, Dahl, “unlike the usual civil

litigant in federal court, is not entitled to discovery as a matter of ordinary

course.” Curtis v. Chester, 

, 549 (10th Cir. 2010) (quoting Bracy v.

Gramley, 

, 904 (1997)). A district court may, in its discretion, grant

discovery on a § 2255 motion if “a petitioner has shown good cause for

discovery—that is, has set forth good reason to believe he may be able to

demonstrate he is entitled to relief.” Id.; see also Wallace v. Ward, 

, 1245 (10th Cir. 1999). Because we just determined the evidence sought

was not material to Dahl’s guilt or punishment, we agree that there was not good

cause to order discovery.

      We deny a COA on this issue.




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                       III. Conclusion

For the foregoing reasons, we DENY a COA and DISMISS this matter.



                                    ENTERED FOR THE COURT,

                                    Timothy M. Tymkovich
                                    Circuit Judge




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