FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
January 15, 2009
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 08-5143
v. (N.D. Oklahoma)
JOHNNY RAY BASHAM, (D.C. No. CV-03-00141-TCK and
CR-00-00107-TCK)
Defendant - Appellant.
ORDER DENYING
CERTIFICATE OF APPEALABILITY *
Before LUCERO, ANDERSON, and TYMKOVICH, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this proceeding. See Fed. R. App. P. 34(a)(2); 10 th Cir. R. 34.1(G). The case
is therefore ordered submitted without oral argument.
Johnny Ray Basham was found guilty, following a jury trial, of possession
with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1)
*
This order is not binding precedent except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
and (b)(1)(C); possession of a firearm in furtherance of a drug trafficking crime,
in violation of 18 U.S.C. § 924(c); and possession of a firearm after former
conviction of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). He
was sentenced to a total term of 324 months’ imprisonment. Basham timely
appealed his conviction and sentence.
After Basham’s notice of appeal and opening brief on appeal were filed, his
counsel, Paul Brunton, left private practice and became the Federal Public
Defender for the Northern and Eastern Districts of Oklahoma. Attorney R.
Thomas Seymour entered his appearance in the Tenth Circuit and represented
Basham at oral argument. This court affirmed Basham’s conviction and sentence.
United States v. Basham, 268 F.3d 1199 (10th Cir. 2001). The United States
Supreme Court denied Basham’s petition for a writ of certiorari. Basham v.
United States, 535 U.S. 945 (2002).
On February 26, 2005, Basham filed the instant 28 U.S.C. § 2255 motion,
alleging that he received ineffective assistance of counsel in various ways. The
district court first held that it was not necessary to hold an evidentiary hearing,
concluding that “the motion and files and records of the case conclusively show
that the [movant] is entitled to no relief.” Op. & Order at 3, R. Vol. 1 (quoting 28
U.S.C. § 2255(b)). The court then determined that Basham’s § 2255 claims
lacked merit, concluding, after examining each of his claims in detail, as follows:
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In summary, the Court finds Basham has failed to satisfy the
Strickland standard as to the assistance provided by his attorney at
trial and on appeal. Basham’s attorney did not perform deficiently at
trial or on direct appeal because the underlying claims lack merit.
Furthermore, nothing alleged by Basham convinces the Court that
there is a reasonable probability that the outcome of the proceedings
would have been different without the incidents of alleged deficient
performance by counsel. Basham is not entitled to § 2255 relief on
his ineffective assistance of trial and appellate counsel claims.
Id. at 10 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). The
district court subsequently denied Basham a certificate of appealability (“COA”).
This pro se appeal followed.
Basham has filed a motion for a COA as well as a pro se appellate brief.
We, therefore, must first address whether to grant Basham a COA to enable him
to appeal the district court’s denial of his § 2255 motion.
In order to obtain a COA, an appellant must make a “substantial showing of
the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), such that “reasonable
jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003). In
addressing this question, we review Basham’s pro se filings with special
solicitude. See Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).
Even according Basham’s materials such a solicitous construction, we conclude,
based upon our own review of the record in this case, and for substantially the
same reasons given by the district court, that no reasonable jurist could debate the
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correctness of the district court’s ruling. Basham’s request for a COA is therefore
denied and this appeal is dismissed.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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