                                                                      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

                                          -3-
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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