                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        July 19, 2007
                                TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                        Clerk of Court


U N ITED STA TES O F A M ER ICA,

              Plaintiff-Appellee,
                                                        No. 06-7116
v.                                                    (E.D. Oklahoma)
                                                  (D.C. No. CIV-05-277-P)
BOB BY CA RR OL                                   (D.C. No. CR -03-21-JHP)
H O LLING SWO R TH ,

              Defendant-Appellant.



                                      OR DER


Before KELLY, M U R PHY , and O'BRIEN, Circuit Judges.


      Petitioner, Bobby Carrol Hollingsworth, 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 Hollingsworth’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 Hollingsworth 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).

      In 2003, Hollingsw orth was charged in a one-count Information with

conspiracy to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1).
Hollingsworth waived indictment and pleaded guilty to the charge. Before

sentencing, Hollingsworth filed a pro se motion seeking to withdraw his guilty

plea. The district court permitted retained counsel to withdraw and appointed

new counsel who filed an amended motion to withdraw the guilty plea together

with a supporting brief. Following a hearing on the matter, the district court

denied the motion and sentenced Hollingsworth to 324 months’ incarceration.

      Hollingsworth filed a direct appeal with this court. W e affirmed the district

court’s denial of the motion to withdraw the plea and dismissed Hollingsworth's

claim that he received ineffective assistance of counsel. United States v.

Hollingsworth, 94 Fed. App’x 743 (10th Cir. 2004) (unpublished disposition).

Hollingsworth thereafter filed the instant § 2255 motion, raising claims of

ineffective assistance of counsel and challenging his sentence as unconstitutional

under United States v. Booker, 543 U.S. 220 (2005). 1 The district court held an

evidentiary hearing on the ineffective assistance claims, hearing testimony from

Hollingsworth and the three attorneys who represented him during the plea and

sentencing proceedings. Applying the paradigm set out in Strickland v.

Washington, 466 U .S. 668 (1984), the district court denied H ollingsworth’s §



      1
        The district court concluded H ollingsworth’s Booker claim lacked merit
because Booker is not retroactively applicable to cases on collateral review. See
U nited States v. Bellam y, 411 F.3d 1182, 1186-87 (10th Cir. 2005) (“W e now join
all other circuits that have examined the question and conclude Booker does not
apply retroactively to initial habeas petitions.”). Hollingsworth does not seek a
COA on this issue.

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2255 motion, concluding he failed to establish counsel’s representation prior to

and during the plea process or during the sentencing proceedings fell below an

objective standard of reasonableness.

      Hollingsworth is before this court seeking to appeal the district court’s

resolution of his ineffective assistance claims. To be entitled to a COA,

Hollingsworth must make “a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). To make the requisite show ing, he must

demonstrate “that reasonable jurists could debate w hether (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.”

M iller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations omitted). In

evaluating whether Hollingsworth has satisfied his burden, this court undertakes

“a preliminary, though not definitive, consideration of the [legal] framew ork”

applicable to each of his claims. Id. at 338. Although Hollingsworth 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 Hollingsworth’s application for a COA and

appellate filings, the district court’s order, and the entire record on appeal

pursuant to the framew ork set out by the Supreme Court in M iller-El, this court

concludes that he is not entitled to a COA. The district court’s resolution of

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Hollingsworth’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 Hollingsworth’s request for a COA and dismisses

this appeal.

                                      Entered for the Court


                                      M ichael R. M urphy
                                      Circuit Judge




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