F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
April 17, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, No. 06-6295
v. (W .D. Oklahoma)
D IA N E LEN O RE G RIFFITH , (D.C. Nos. 06-CV-424-R and
02-CR-92-R)
Defendant-Appellant.
OR DER
Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges.
This matter is before the court on Diane Lenore Griffith’s pro se request for
a certificate of appealability (“C OA”). Griffith, a federal prisoner, seeks a COA
so she can appeal the district court’s denial of her 28 U.S.C. § 2255 motion.
28 U.S.C. § 2253(c)(1)(B). Because Griffith has not “made a substantial showing
of the denial of a constitutional right,” id. § 2253(c)(2), this court denies her
request for a COA and dismisses this appeal.
Following a jury trial, Griffith was found guilty of conspiracy and wire
fraud. United States v. Dazey, 403 F.3d 1147, 1159 (10th Cir. 2005). This court
affirmed Griffith’s convictions on direct appeal. Id. at 1179. Griffith then filed
the instant § 2255 motion, asserting her convictions were void ab initio because
the district court lacked jurisdiction to try her and her trial did not comport with
the Speedy Trial Act, 18 U.S.C. § 3161, et seq. The district court denied
Griffith’s § 2255 motion, concluding as follows: (1) it had jurisdiction to try the
charges against Griffith pursuant to 18 U.S.C. § 3231; (2) Griffith’s
jurisdictional challenge was, in essence, a disguised challenge to the sufficiency
of the evidence supporting her convictions, challenges already rejected by this
court on direct appeal; (3) Griffith was procedurally barred from raising a claim
under the Speedy Trial Act because she had failed to raise such a claim on direct
appeal.
The granting of a CO A is a jurisdictional prerequisite to Griffith’s appeal
from the denial of her § 2255 motion. M iller-El v. Cockrell, 537 U.S. 322, 336
(2003). To be entitled to a COA, Griffith must make “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the
requisite showing, she must demonstrate “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.” Id. (quotations omitted). In evaluating
whether Griffith has satisfied her burden, this court undertakes “a preliminary,
though not definitive, consideration of the [legal] framew ork” applicable to each
of her claims. Id. at 338. Although Griffith need not demonstrate her appeal will
succeed to be entitled to a COA, she must “prove something more than the
absence of frivolity or the existence of mere good faith.” Id.
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Having undertaken a review of Griffith’s voluminous appellate filings, the
district court’s order, and the entire record before this court pursuant to the
framew ork set out by the Supreme Court in M iller-El, we conclude Griffith is not
entitled to a COA. The district court’s resolution of Griffith’s § 2255 motion is
not reasonably subject to debate and the issues she seeks to raise on appeal are
not adequate to deserve further proceedings. Griffith’s claims regarding the
jurisdiction of the district court to try the charges against her are, to say the very
least, fanciful and frivolous. Accordingly, this court DENIES Griffith’s request
for a COA and DISM ISSES this appeal. Griffith’s motion to proceed on appeal
in form a pauperis; “M otion to disqualify the entire 1st, 2nd, 3rd, 4th, 5th, 6th,
7th, 8th, 9th, 10th, 11th, and District of Columbia Circuits for Cause:
racketeering”; and M otion for Release on Bond Pending Appeal are likew ise
DENIED.
Entered for the Court
Elisabeth A . Shumaker, Clerk
By:
Deputy Clerk
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