FILED
United States Court of Appeals
Tenth Circuit
April 7, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 08-8079
(D. Wyoming)
v.
(D.C. Nos. 1:05:CV-00081-WFD and
2:01-CR-00079-WFD-1)
ASHLEY LONZA WILLIAMS, III,
Defendant - Appellant.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.
This matter is before the court on Ashley L. Williams’s pro se request for a
certificate of appealability (“COA”). Williams seeks a COA so he can appeal the
district court’s denial of his 28 U.S.C. § 2255 motion. 28 U.S.C. § 2253(c)(1)(B).
Because Williams has not “made a substantial showing of the denial of a
constitutional right,” id. § 2253(c)(2), this court denies his request for a COA and
dismisses this appeal.
The factual and procedural history of this case is set out in this court’s
opinion on direct appeal affirming Williams’s convictions. United States v.
Williams, 94 F. App’x 693, 694 (10th Cir. 2004). Thus, the general background
need not be repeated here, other than to note Williams was convicted, following a
jury trial, of conspiring to willfully and knowingly possess with intent to
distribute in excess of 500 grams of methamphetamine, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(A). Id. In the instant § 2255 motion, Williams raised a
multitude of claims, including several claims of ineffective assistance of trial
counsel. In a thorough order, the district court reviewed Williams’s claims on the
merits and concluded the record conclusively demonstrated Williams was not
entitled to relief. Accordingly, the district court denied Williams’s request for an
evidentiary hearing and denied Williams’s § 2255 motion. See 28 U.S.C.
§ 2255(b) (providing that where the “files and records of the case conclusively
show that the prisoner is entitled to no relief,” the district court need not hold an
evidentiary hearing).
In his application for a COA, 1 Williams asserts generally that he was
entitled to an evidentiary hearing on his multifocal claim of ineffective assistance
of appellate counsel. He also generally contends the district court committed
error in denying his § 2255 motion without obligating the government to “present
admissible evidence.” Williams does not, however, explain what additional
evidence or testimony is necessary to resolve his claims of ineffective assistance
of trial counsel.
1
Williams filed his application for a COA on December 9, 2008, but did not
file an appellate brief. This court sent Williams a written deficiency notice
regarding the missing appellate brief, but Williams did not file a timely response.
Accordingly, on February 4, 2009, this court entered an order noting that
Williams’s application for a COA would also be treated as his appellate brief.
-2-
The granting of a COA is a jurisdictional prerequisite to Williams’s appeal
from the denial of his § 2255 petition. Miller-El v. Cockrell, 537 U.S. 322, 336
(2003). To be entitled to a COA, Williams must make “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the
requisite showing, he 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 Williams has satisfied his burden, this court undertakes “a preliminary,
though not definitive, consideration of the [legal] framework” applicable to each
of his claims. Id. at 338. Although Williams need not demonstrate his appeal
will succeed to be entitled to a COA, he must “prove something more than the
absence of frivolity or the existence of mere good faith.” Id.
Having undertaken a review of Williams’s appellate filing, the district
court’s order, and the entire record before this court pursuant to the framework
set out by the Supreme Court in Miller-El, we conclude Williams is not entitled to
a COA. The district court’s resolution of Williams’s § 2255 motion is not
reasonably subject to debate and the issues he seeks to raise on appeal are not
adequate to deserve further proceedings. Furthermore, because Williams’s
motion could be properly and conclusively resolved on the basis of the record
alone, the district court did not err in refusing to hold an evidentiary hearing.
-3-
28 U.S.C. § 2255(b). Accordingly, this court DENIES Williams’s request for a
COA and DISMISSES this appeal.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
-4-