                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         JAN 27 2003
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


UNITED STATES OF AMERICA,

          Plaintiff - Appellee,                        No. 02-5069
                                                (D.C. Nos. 01-CV-562-C &
v.                                                     99-CR-95-C)
                                                    (N.D. Oklahoma)
JOSEPH ALBERT ELLSWORTH,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, McKAY, and MURPHY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      This case is before the court on Joseph A. Ellsworth’s application for a

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

pauperis. Ellsworth seeks a COA so that he can appeal the district court’s denial

of his 28 U.S.C. § 2255 motion. See 28 U.S.C. § 2253(c)(1)(B) (providing that no

appeal may be taken from “the final order in a proceeding under section 2255”

unless the movant first obtains a COA). In denying Ellsworth’s motion, the

district court concluded that all but three of Ellsworth’s claims were procedurally

barred by his failure to raise them on appeal or waived by his guilty plea. As to

the three claims that it addressed on the merits, the district court concluded that

Ellsworth had failed to show that his attorney provided ineffective assistance at

sentencing, had failed to demonstrate that his guilty plea was unknowing or

involuntary, and had failed to show that the government had breached the plea

agreement.

      To be entitled to a COA, Ellsworth must make a “substantial showing of

the denial of a constitutional right.” See id. § 2253(c)(2). Ellsworth can make

the requisite showing by demonstrating 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).

Upon consideration of Ellsworth’s application for a COA and appellate brief, and


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de novo review of the district court’s order and the entire record on appeal, this

court concludes that Ellsworth has not made a substantial showing of the denial of

a constitutional right for substantially those reasons set out in the district court’s

order dated May 2, 2002. Considerations of judicial economy counsel against

repeating the thorough and comprehensive analysis of Ellsworth’s petition set out

in the district court order. Accordingly, this court GRANTS Ellsworth

permission to proceed in forma pauperis, DENIES his application for a COA, and

DISMISSES this appeal.

                                         ENTERED FOR THE COURT



                                         Michael R. Murphy
                                         Circuit Judge




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