The Tenth Circuit Court of Appeals published its opinion in United States v. Roberts on Friday, July 20, 2012.
The Tenth Circuit granted Petitioner a certificate of appealability (COA) on one issue, and denied it regarding all other issues. Petitioner sought a COA so he could appeal the district court’s denial of the motion to vacate, set aside, or correct sentence after being convicted of being a felon in possession of a firearm. The judgment of conviction was affirmed by the Tenth Circuit in 2011 but later raised four claims of ineffective assistance of trial counsel. The district court denied relief on all four claims.
Petitioner cannot appeal the denial of his motion until he first obtains a COA from the Tenth Circuit. “To be entitled to a COA, [Petitioner] must make ‘a substantial showing of the denial of a constitutional right.’ To make the requisite showing, he must demonstrate ‘that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.’ . . . Although [Petitioner] need not demonstrate his appeal will succeed to be entitled to a COA, he must ‘prove something more than the absence of frivolity or the existence of mere good faith.’ In his COA application and appellate brief, [Petitioner] challenges the district court’s disposition of his four claims and also argues the court abused its discretion by refusing to permit him to amend his § 2255 motion.”
The Court concluded that Petitioner “is not entitled to a COA on any claim except the one relating to the district court’s refusal to permit him to amend his § 2255 motion to add claims his trial and appellate counsel were ineffective for failing to challenge the calculation of his criminal history. The district court’s resolution of the remaining claims on which [Petitioner] seeks a COA is not reasonably subject to debate and the other issues he seeks to raise on appeal are not adequate to deserve further proceedings.”