F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
August 17, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
BEN EZRA LYONS,
Petitioner-Appellant,
v. No. 04-6369
(W.D. Oklahoma)
MARTY SIRMONS, Warden, Dick (D.Ct. No. CV-04-632-C)
Conner Correctional Center;
ATTORNEY GENERAL OF THE
STATE OF OKLAHOMA,
Respondents-Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY
AND DISMISSING APPEAL
Before KELLY, O’BRIEN, and TYMKOVICH, 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.
Ben Ezra Lyons, proceeding pro se, moves for a Certificate of
Appealability ("COA") pursuant to 28 U.S.C. § 2253(c) in order to challenge the
district court's denial of his 28 U.S.C. § 2254 petition for habeas relief. 1
On June 30, 2003, Lyons pled guilty to robbery with a dangerous weapon
and was sentenced to fifteen years imprisonment. He did not appeal his
conviction. Instead, in a motion for post-conviction relief filed in Oklahoma
district court, he alleged his attorney failed to advise him he had a meritorious
appeal based on an allegedly disparate sentence from that imposed on his co-
defendant. 2 His petition claiming ineffective assistance of counsel was denied on
March 31, 2004. The Oklahoma Criminal Court of Appeals affirmed the denial of
his petition for post-conviction relief on May 10, 2004.
Lyons filed a Petition for a Writ of Habeas Corpus in the District Court for
the Western District of Oklahoma on May 20, 2004. In his federal § 2254
petition, Lyons raises the same allegations contained in his petition for post-
conviction relief. The matter was referred to a magistrate judge who issued a
thorough report and a recommendation to deny Lyons’ petition. The magistrate
reasoned, inter alia, that Lyons received the precise period of imprisonment
negotiated in exchange for his guilty plea. He also noted the government
1
This appeal was partially remanded to the district court for a ruling on Lyons’
timely motion for an extension of time in which to file his notice of appeal under Fed. R.
App. 4(a)(5). In an order dated December 16, 2004, the district court granted Lyons’
motion for an extension of time.
2
Lyons’ co-defendant was sentenced to twelve years imprisonment with seven
years suspended sentence.
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dismissed a second count for being a felon in possession of a firearm; a crime
which carried a range of one to ten years imprisonment. His co-defendant was
not charged with a second violation. Therefore, Lyons failed to show either his
counsel’s performance was deficient or a reasonable probability that, even had he
appealed, a different outcome would have resulted. Strickland v. Washington,
466 U.S. 668, 688 (1984). The district court adopted the magistrate’s report and
recommendation in its entirety and denied Lyons’ petition on September 17, 2004.
Lyons then requested a certificate of appealability (COA) pursuant to 28
U.S.C. § 2253(c)(requiring a state petitioner to acquire a COA as a condition to
appeal) and permission to proceed in forma pauperis (ifp) pursuant to 28 U.S.C. §
1915(b). The district court denied both requests. We now consider his renewed
request for a COA and to proceed ifp.
"A certificate of appealability may issue . . . only if the applicant has made
a substantial showing of the denial of a constitutional right." 28 U.S.C. §
2253(c)(2). "Where a district court has rejected the constitutional claims on the
merits," the prisoner "must demonstrate that reasonable jurists would find the
district court's assessment of the constitutional claims debatable or wrong." Slack
v. McDaniel, 529 U.S. 473, 484 (2000). We recognize that in determining
whether to issue a COA, a "full consideration of the factual or legal bases
adduced in support of the claims" is not required. Miller-El v. Cockrell, 537 U.S.
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322, 336 (2003). Instead, the decision must be based on "an overview of the
claims in the habeas petition and a general assessment of their merits." Id.
We conclude that Lyons’ ineffective assistance of counsel claim must fail
for the same reasons set forth by the magistrate judge and adopted by the district
court. No reasonable jurist would debate whether his § 2254 petition should have
been granted. With regard to Lyons’ request to proceed ifp, we conclude the
district court correctly determined that Lyons failed to show the existence of a
reasoned, nonfrivolous argument on the law and facts in support of the issues he
raises on appeal. Accordingly, we DENY his petition for a COA and his motion
for leave to file in forma pauperis and DISMISS his appeal. Lyons shall remit
the full amount of the filing fee within twenty (20) days of this order.
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
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