United States v. Fisher ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
December 16, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 09-3145
(D. Kansas)
v.
(D.C. Nos. 6:06-CR-10162-1-JTM and
6:09-CV-01074-JTM)
STACY L. FISHER,
Defendant - Appellant.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before LUCERO, McKAY, and MURPHY, Circuit Judges.
This matter is before the court on Stacy Fisher’s pro se request for a
certificate of appealability (“COA”). Fisher 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 Fisher 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.
Fisher pleaded guilty, pursuant to a plea agreement, to one count of illegal
possession of a firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1). The plea agreement specifically contemplated Fisher would be
sentenced within the range set out in the Sentencing Guidelines, as determined by
the district court. Fisher further agreed, in exchange for concessions from the
government, to waive his right to collaterally attack his sentence, so long as the
sentence imposed was “within the [G]uideline range determined appropriate by
the court.”
Despite his specific waiver of the right to collaterally attack his sentence,
Fisher filed the instant § 2255 motion. In his § 2255 motion, Fisher asserted his
Guideline sentencing range was miscalculated because the district court treated a
prior escape as a crime of violence, for purposes of U.S.S.G. § 2K2.1(a)(2), in
contravention of Chambers v. United States, 129 S. Ct. 687 (2009). The district
court denied Fisher’s § 2255 motion on the basis of the waiver of Fisher’s right to
collaterally attack his sentence. The district court noted Fisher’s claim did not
fall within any exception to the general rule upholding the enforceability of such
waivers. See United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004). In
particular, the district court noted the issue Fisher sought to raise was within the
broad scope of the waiver, the waiver was entered knowingly and voluntarily, and
the enforcement of the waiver would not work a miscarriage of justice as that
term was narrowly defined in Hahn.
Alternatively, the district court noted that even were Fisher to prevail on
the issue set out in his § 2255 motion, it would not alter his sentence. U.S.S.G.
§ 2K2.1(a)(2) establishes a base offense level of twenty-four if a defendant
illegally possessed a firearm “subsequent to sustaining at least two felony
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convictions of either a crime of violence or a controlled substance offense.” In
the second numbered paragraph of his plea agreement, Fisher specifically
recognized that prior to his possession of the firearm in the instant case, he had
been convicted of two felony controlled substances offenses. Thus, without
regard to whether his escape was properly considered a violent felony, his base
offense level was properly calculated pursuant to § 2K2.1(a)(2).
The granting of a COA is a jurisdictional prerequisite to Fisher’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, Fisher 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 Fisher 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 Fisher 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 Fisher’s appellate filings, the district court’s
order, and the entire record before this court pursuant to the framework set out by
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the Supreme Court in Miller-El, we conclude Fisher is not entitled to a COA. The
district court’s resolution of Fisher’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 Fisher’s request for a COA
and DISMISSES this appeal.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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