                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   July 15, 2013
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT



UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
                                                        No. 13-6097
                                              (D.C. Nos. 5:13-CV-00303-HE &
v.
                                                    5:08-CR-00073-HE-1)
                                                       (W.D. Okla.)
CHARLES DEAN COUCHMAN,

             Defendant - Appellant.


                      ORDER DENYING CERTIFICATE
                          OF APPEALABILITY


Before LUCERO, McKAY, and MURPHY, Circuit Judges.



      This matter is before the court on Charles Couchman’s pro se requests for a

certificate of appealability (“COA”) and to proceed on appeal in forma pauperis

(“IFP”). Couchman 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 Couchman 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.

Additionally, as Couchman has failed to present a “reasoned, nonfrivolous

argument on the law and facts in support of the issues raised on appeal,” we deny
his request to proceed IFP. Caravalho v. Pugh, 177 F.3d 1177, 1177 (10th Cir.

1999).

         Couchman pleaded guilty to being a felon in possession of a firearm and

ammunition. Because of his extensive criminal history, Couchman was sentenced

as an armed career criminal under 18 U.S.C. § 924(e)(1) and U.S.S.G. § 4B1.4.

On direct appeal, this court concluded Couchman’s 192-month sentence was both

procedurally and substantively reasonable and consistent with the Eighth

Amendment. United States v. Couchman, 329 F. App’x 836, 837-39 (10th Cir.

2009). In the instant § 2255 motion, Couchman asserted (1) his appellate counsel

was ineffective for failing to argue his convictions violated the Second

Amendment; (2) his sentence violates the Eighth Amendment; and (3) the

application to him of a law not in effect at the time of his birth violates the Ex

Post Facto Clause. The district court summarily rejected each claim, noting as

follows: (1) District of Columbia v. Heller, 554 U.S. 570, 626-27 (2008), makes

clear the Second Amendment is not violated by a prohibition on a convicted felon

possessing a firearm; (2) this court rejected an Eight Amendment challenge to

Couchman’s sentence on direct appeal, Couchman, 329 F. App’x at 839; and

(3) the Ex Post Facto Clause does not lock into place the legal regime in existence

at the time of a particular defendant’s birth, but instead prevents the government

from retroactively criminalizing conduct that was legal at the time undertaken.




                                         -2-
      The granting of a COA is a jurisdictional prerequisite to Couchman’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, he 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.” Miller-El, 537 U.S. at 336 (quotations omitted). In evaluating

whether Couchman 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 he 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 Couchman’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 Couchman is not entitled

to a COA. The district court’s resolution of Couchman’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. Instead, the arguments set out in

Couchman’s brief on appeal are either frivolous or foreclosed by this court’s

decision on direct appeal. Accordingly, this court DENIES Couchman’s request

                                         -3-
for a COA and DISMISSES this appeal. Furthermore, given that we have denied

his motion to proceed on appeal IFP, we remind Couchman that he is obligated to

pay the full amount of the filing fee.



                                          ENTERED FOR THE COURT


                                          Michael R. Murphy
                                          Circuit Judge




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