United States v. Moyer ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS July 29, 2009
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 08-4226
(D. Utah)
v.
(D.C. Nos. 2:08-CV-00700-TS
and 2:04-CR-00387-TS-1)
RANDALL C. MOYER,
Defendant - Appellant.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.
Proceeding pro se, Randall Moyer seeks to appeal the district court’s denial
of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. The
matter is before this court on Moyer’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 Moyer has not “made a substantial showing of the denial of a
constitutional right,” this court denies his request for a COA and dismisses this
appeal. Id. § 2253(c)(2).
Moyer pleaded guilty to one count of attempting to manufacture fifty grams
or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1). He was
sentenced to 240 months’ imprisonment. Although the written plea agreement
contained a waiver of Moyer’s right to directly appeal or collaterally attack his
conviction and sentence, he filed a direct appeal with this court. United States v.
Moyer, 247 Fed. App’x 996 (10th Cir. 2007) (unpublished disposition). Counsel
filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and the
government argued Moyer waived his right to appeal pursuant to the terms of the
plea agreement. Id. at 998. This court enforced the waiver and dismissed
Moyer’s appeal. Id.
Moyer filed the instant § 2255 motion on September 15, 2008, challenging
the validity of his plea based on a claim of ineffective assistance of counsel. See
United States v. Cockerham, 237 F.3d 1179, 1183 (10th Cir. 2001). The district
court denied Moyer’s § 2255 motion, concluding his claim failed because his
conclusory allegations of ineffective assistance were insufficient to overcome
statements he made in open court during the plea proceedings that he was
knowingly and voluntarily entering into the plea agreement. See Lasiter v.
Thomas, 89 F.3d 699, 702-03 (10th Cir. 1996).
To be entitled to a COA, Moyer 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
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proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations
omitted). In evaluating whether Moyer 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 Moyer 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 Moyer’s application for a COA and
appellate filings, 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 he is not entitled to a COA. The district court’s resolution of Moyer’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 Moyer’s request for a COA and dismisses this appeal. Moyer’s
motion to proceed in forma pauperis on appeal is granted.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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