United States v. Duran , 408 F. App'x 139 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
January 19, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 10-4132
(D. Utah)
v.
(D.C. Nos. 1:08-CV-00044-DAK and
1:03-CR-00139-DAK-1)
JAMES DURAN,
Defendant - Appellant.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.
This matter is before the court on James Duran’s pro se request for a
certificate of appealability (“COA”). Duran 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 Duran 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.
Following a jury trial, Duran was convicted of multiple counts of violating
federal drug and firearm prohibitions. United States v. Duran, 213 Fed. App’x
764, 765 (10th Cir. 2007). This court affirmed Duran’s convictions on appeal,
concluding that neither the issues raised by counsel nor the issues raised by Duran
in a pro se brief had any merit. Id. at 767-68. Duran thereafter filed the instant
§ 2255 motion, raising numerous issues, many of which had multiple sub-issues.
After carefully parsing Duran’s voluminous and often opaque filings, the district
court denied Duran’s § 2255 motion on the merits.
The granting of a COA is a jurisdictional prerequisite to Duran’s appeal
from the denial of his § 2255 motion. Miller-El v. Cockrell, 537 U.S. 322, 336
(2003). To be entitled to a COA, Duran 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 [motion] 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 Duran 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 Duran 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 Duran’s appellate filings, 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 Duran is not entitled to a COA. The
district court’s resolution of Duran’s § 2255 motion is not reasonably subject to
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debate and the issues he seeks to raise on appeal are not adequate to deserve
further proceedings. Accordingly, this court DENIES Duran’s request for a COA
and DISMISSES this appeal.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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