F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 27 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 02-5069
(D.C. Nos. 01-CV-562-C &
v. 99-CR-95-C)
(N.D. Oklahoma)
JOSEPH ALBERT ELLSWORTH,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
This case is before the court on Joseph A. Ellsworth’s application for a
certificate of appealability (“COA”) and motion to proceed on appeal in forma
pauperis. Ellsworth seeks a COA so that he can appeal the district court’s denial
of his 28 U.S.C. § 2255 motion. See 28 U.S.C. § 2253(c)(1)(B) (providing that no
appeal may be taken from “the final order in a proceeding under section 2255”
unless the movant first obtains a COA). In denying Ellsworth’s motion, the
district court concluded that all but three of Ellsworth’s claims were procedurally
barred by his failure to raise them on appeal or waived by his guilty plea. As to
the three claims that it addressed on the merits, the district court concluded that
Ellsworth had failed to show that his attorney provided ineffective assistance at
sentencing, had failed to demonstrate that his guilty plea was unknowing or
involuntary, and had failed to show that the government had breached the plea
agreement.
To be entitled to a COA, Ellsworth must make a “substantial showing of
the denial of a constitutional right.” See id. § 2253(c)(2). Ellsworth can make
the requisite showing by demonstrating 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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Upon consideration of Ellsworth’s application for a COA and appellate brief, and
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de novo review of the district court’s order and the entire record on appeal, this
court concludes that Ellsworth has not made a substantial showing of the denial of
a constitutional right for substantially those reasons set out in the district court’s
order dated May 2, 2002. Considerations of judicial economy counsel against
repeating the thorough and comprehensive analysis of Ellsworth’s petition set out
in the district court order. Accordingly, this court GRANTS Ellsworth
permission to proceed in forma pauperis, DENIES his application for a COA, and
DISMISSES this appeal.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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