FILED
United States Court of Appeals
Tenth Circuit
December 13, 2017
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 17-4022
v. (D.C. Nos. 2:16-CV-00206-RJS and
2:11-CR-00876-RJS-DBP-1)
PORTIA LOUDER, (D. Utah)
Defendant - Appellant.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before KELLY, MURPHY, and MATHESON, Circuit Judges.
Proceeding pro se, Portia Louder seeks to appeal the district court’s denial
of her 28 U.S.C. § 2255 motion to vacate, set aside, or correct her sentence. The
matter is before this court on Louder’s request for a certificate of appealability
(“COA”). 28 U.S.C. § 2253(c)(1)(B) (providing no appeal may be taken from a
“final order in a proceeding under section 2255” unless the movant first obtains a
COA). Because Louder has not “made a substantial showing of the denial of a
constitutional right,” this court denies her request for a COA and dismisses this
appeal. Id. § 2253(c)(2). Louder’s motion to proceed in forma pauperis is
granted.
Louder was charged by indictment with making false statements, wire
fraud, money laundering, and conspiracy. She underwent a competency
evaluation and the district court found her competent to stand trial. In August
2014, Louder pleaded guilty to the wire fraud and conspiracy counts and was
sentenced to eighty-four months’ imprisonment. Louder did not file a direct
appeal.
In her pro se § 2255 motion, Louder asserted her guilty plea was not
voluntary because she was not competent when she entered the plea. She also
asserted her guilty plea was coerced. The claims raised in Louder’s motion were
addressed by the district court in a comprehensive memorandum decision and
order. The district court concluded that Louder’s challenges to her convictions
are procedurally barred because they were not raised in a direct appeal. See
United States v. Allen, 16 F.3d 377, 378 (10th Cir. 1994) (“A defendant who fails
to present an issue on direct appeal is barred from raising the issue in a § 2255
motion, unless he can show cause for his procedural default and actual prejudice
resulting from the alleged errors, or can show that a fundamental miscarriage of
justice will occur if his claim is not addressed.”). The court further concluded
that, even in the absence of a procedural bar, the claims had no merit.
To be entitled to a COA, Louder 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 “that reasonable jurists could debate whether (or,
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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 Louder has satisfied her burden, this court
undertakes “a preliminary, though not definitive, consideration of the [legal]
framework” applicable to each of her claims. Id. at 338. Although Louder 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.
Having undertaken a review of Louder’s application for a COA and
appellate brief, the district court’s order, and the entire record on appeal pursuant
to the framework set out by the Supreme Court in Miller-El, this court concludes
Louder is not entitled to a COA. The district court’s resolution of her § 2255
motion is not reasonably subject to debate and the issues she seeks to raise on
appeal are not adequate to deserve further proceedings. Accordingly, this court
denies Louder’s request for a COA and dismisses this appeal.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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