FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS November 30, 2005
TENTH CIRCUIT
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 05-2126
MARVIN JOHN COBB, (D.C. Nos. CV-04-1026 WPJ/ACT and
CR-03-244 WPJ)
Defendant-Appellant. (D.N.M.)
ORDER
Before BRISCOE, LUCERO, and MURPHY , Circuit Judges.
Marvin John Cobb, a federal prisoner proceeding pro se, requests a
certificate of appealability (“COA”) so that he may appeal the district court’s
denial of his habeas petition that he filed pursuant to 28 U.S.C. § 2255.
Cobb, who has a prior state felony conviction, pled guilty to possession
with intent to distribute marijuana in violation of 21 U.S.C. § 841, and was
sentenced to the statutory minimum sentence of sixty months’ incarceration.
Cobb did not appeal his conviction or sentence.
On September 10, 2004, Cobb filed a § 2255 petition, claiming ineffective
assistance of counsel and involuntary guilty plea. The district court referred the
matter to a magistrate judge, who recommended that Cobb’s petition be
dismissed. The district court adopted the magistrate judge’s report and
recommendation, overruled Cobb’s timely objections, and denied Cobb’s request
for habeas relief. Cobb requested a COA as to his claims of ineffective assistance
of counsel and involuntary guilty plea. On April 28, 2005, the district court
declined to grant a COA, but granted Cobb’s motion to proceed in forma pauperis.
Unless the petitioner first obtains a COA, no appeal may be taken from a
final order disposing of a § 2255 petition. See 28 U.S.C. § 2253(c)(1)(B). A
COA may issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(2)(c). In determining whether
Cobb has satisfied this burden, this court undertakes “a preliminary, though not
definitive, consideration of the [legal] framework” applicable to each of his
claims.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003). To be entitled to a
COA, Cobb need not establish that his appeal will succeed. Instead, he must
“prove something more than the absence of frivolity or the existence of mere
good faith.” Id. (internal quotations omitted).
Based upon our review of the record on appeal, we conclude that Cobb is
not entitled to a COA because no reasonable jurist would disagree with the
district court’s resolution of the issues in Cobb’s habeas petition.
1. Ineffective Assistance of Counsel
Cobb, who is a Vietnam veteran allegedly suffering from post-traumatic
stress disorder, claims that his counsel was ineffective for failing to argue that his
mental condition was a mitigating factor that should reduce his sentence. The
only support in the record for Cobb’s claim, however, are Cobb’s own statements
during his sentencing hearing that he “suffered from panic attacks about a week
and half to two weeks prior . . . .” Notably, the district court rejected Cobb’s
statements in this regard. Aside from his statements at sentencing, Cobb has not
offered any evidence to show that he suffered from diminished capacity at the
time of his offense.
Cobb additionally maintains that his counsel was deficient for failing to
move for a downward departure. The magistrate judge, however, found that
Cobb’s counsel was concerned about invalidating the plea agreement by filing a
motion for a downward departure. Further, pursuant to the terms of the plea
agreement, Cobb agreed that he would not seek a downward departure.
The district court held that Cobb failed to demonstrate that his attorney’s
conduct was deficient pursuant to Strickland v. Washington, 466 U.S. 668, 687
(1984). The district court also held that Cobb failed to show that his counsel’s
performance prejudiced his defense. As to his arguments regarding diminished
capacity and a downward departure motion, Cobb could not establish prejudice
because the judge sentenced him to the statutory minimum of sixty months.
No reasonable jurist could conclude that Cobb made a substantial showing
of a violation of his constitutional rights in his ineffectiveness claims.
2. Involuntary Guilty Plea
Cobb asserts that his guilty plea was involuntary because he conferred with
his attorney for only twenty minutes about the agreement, and because he did not
read the agreement.
The district court held that Cobb’s plea was constitutionally valid because
it was voluntary and intelligently given. See Bousley v. United States, 523 U.S.
614, 618 (1998). The record does not support Cobb’s allegation that his guilty
plea was involuntary. At the plea hearing, Cobb acknowledged that he
understood and signed the plea agreement. The plea agreement stated that, in
signing it, Cobb represented that his guilty plea was “freely and voluntarily made
and not the result of force or threats or promises apart from those set forth in the
plea agreement.” Plea Agreement, at 6.
No reasonable jurist could disagree with the district court’s resolution of
Cobb’s claim regarding the voluntariness of his guilty plea.
Cobb’s request for a COA is DENIED, and this matter is DISMISSED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge