FILED
United States Court of Appeals
Tenth Circuit
August 28, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 09-4074
(D. Utah)
v.
(D.C. Nos. 2:07-CV-00869-DAK and
2:03-CR-00658-DAK-1)
WADE ROSS WADLEY,
Defendant - Appellant.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before LUCERO, McKAY, and MURPHY, Circuit Judges.
Petitioner, Wade Ross Wadley, seeks a certificate of appealability (“COA”)
from this court so he can appeal the district court’s denial of the motion to vacate,
set aside, or correct sentence he brought pursuant to 28 U.S.C. § 2255. See 28
U.S.C. § 2253(c)(1)(B) (providing a movant may not appeal the denial of a
§ 2255 motion unless he first obtains a COA). Wadley pleaded guilty to nine
counts of Hobbs Act robbery and two firearm charges. Wadley then filed a direct
appeal challenging the 140-month sentence imposed by the district court. United
States v. Wadley, 191 F. App’x 799, 800 (10th Cir. 2006). The sentence was
affirmed. Id.
Wadley filed the instant § 2255 motion on November 9, 2007. In the
motion he raised (1) several challenges to the jurisdiction of the trial court, (2) a
claim the application of the Hobbs Act to his offenses was unconstitutional, (3) a
double jeopardy argument, and (4) allegations of ineffective assistance of counsel.
The district court denied Wadley’s § 2255 motion, concluding all the claims
lacked merit.
In his appellate brief, Wadley challenges the disposition of the
jurisdictional issues and the Hobbs Act claim. To be entitled to a COA, Wadley
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 “that
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.” Miller-El
v. Cockrell, 537 U.S. 322, 336 (2003) (quotations omitted). In evaluating
whether Wadley 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 Wadley 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 Wadley’s application for a COA and
appellate filings, the district court’s order, and the entire record on appeal
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pursuant to the framework set out by the Supreme Court in Miller-El, this court
concludes he is not entitled to a COA. The district court’s resolution of Wadley’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. Accordingly, this
court denies Wadley’s request for a COA and dismisses this appeal. Wadley’s
motion to proceed in forma pauperis on appeal is granted.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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