                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                   UNITED STATES COURT OF APPEALS April 21, 2009

                                TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                   Clerk of Court


 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                      No. 08-6251
       v.                                             (W.D. Oklahoma)
 OLIVER KEITH BROWNER,                          (D.C. No. 5:07-CV-00782-D)

              Defendant - Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before HARTZ, EBEL, and O’BRIEN, Circuit Judges.


      Oliver Keith Browner pleaded guilty in the United States District Court for

the Western District of Oklahoma to conspiracy to distribute cocaine base, in

violation of 21 U.S.C. § 846. Mr. Browner filed a pro se motion under 28 U.S.C.

§ 2255, asserting that his guilty plea was rendered involuntary by his trial

counsel’s ineffective assistance. He contended that his trial counsel’s failure to

subpoena evidence “left [him] with no option, but [to] plead guilty.” R. Vol. 1 at

70. After holding an evidentiary hearing at which Mr. Browner and his trial

counsel testified, the district court denied relief. Mr. Browner now asks us to

issue a certificate of appealability (COA). See 28 U.S.C. § 2253(c)(1)(B)

(requiring COA to appeal denial of § 2255 motion). We deny a COA and dismiss

the appeal.
      A COA will issue “only if the applicant has made a substantial showing of

the denial of a constitutional right.” Id. § 2253(c)(2). This standard requires “a

demonstration that . . . includes showing 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 proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(internal quotation marks omitted). In other words, an applicant must show that

the district court’s resolution of the constitutional claim was either “debatable or

wrong.” Id. In determining whether to issue a COA, a “full consideration of the

factual or legal bases adduced in support of the claims” is not required. Miller-El

v. Cockrell, 537 U.S. 322, 336 (2003). Instead, the decision must be based on “an

overview of the claims in the habeas petition and a general assessment of their

merits.” Id.

      The district court has set out its factual findings and legal analysis in a

thorough and carefully reasoned opinion determining that trial counsel had not

provided deficient representation under Strickland v. Washington, 466 U.S. 668

(1984), by failing to subpoena documents and witnesses that Mr. Browner

believes would have aided in his defense. The district court also determined that

Mr. Browner had failed to establish prejudice within the meaning of Hill v.

Lockhart, 474 U.S. 52, 59 (1985), because he had not shown a reasonable

probability that he would have proceeded to trial rather than plead guilty but for

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error committed by trial counsel. The district court’s decision could not be

debated by reasonable jurists.

      Mr. Browner appears to be making some additional arguments in support of

his COA application, but we decline to consider them because he did not raise

them in district court.

      We DENY the application for a COA and dismiss the appeal.

                                      ENTERED FOR THE COURT


                                      Harris L Hartz
                                      Circuit Judge




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