                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         DEC 14 2000
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


UNITED STATES OF AMERICA,

             Plaintiff-Appellee,
                                                       No. 00-6250
v.                                               (W. District of Oklahoma)
                                                  (D.C. No. 96-CR-80-L)
COYETTE DEON JOHNSON,

             Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges.



      After examining Appellant’s brief and the 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       This order and judgment is not binding precedent, except under the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.
       The case is before this court on Appellant, Coyette Deon Johnson’s request

for a certificate of appealability (“COA”). Johnson seeks a COA so he can

appeal the district court’s denial of his motion to vacate, set aside, or correct

sentence brought pursuant to 28 U.S.C. § 2255.          See 28 U.S.C. § 2253(c)(1)(b)

(providing that a petitioner may not appeal the denial of a § 2255 petition unless

he first obtains a COA). Johnson has not made “a substantial showing of the

denial of a constitutional right,” and, therefore, this court    denies Johnson’s

request for a COA and      dismisses the appeal.     See id. § 2253(c)(2).

        After a jury trial, Johnson was convicted of being a felon in possession of

a firearm in violation of 18 U.S.C. § 922(g)(1), being an unlawful user of

controlled substances in possession of a firearm in violation of 18 U.S.C. §

922(g)(3), and distribution of a controlled substance in violation of 21 U.S.C. §

841(a)(1). Johnson was sentenced as a career criminal under 18 U.S.C. §

924(e)(1). On direct appeal, this court affirmed Johnson’s convictions based on

violations of 18 U.S.C. § 922(g)(1) and 21 U.S.C. § 841(a)(1) but instructed the

district court to vacate Johnson’s conviction based on 18 U.S.C. § 922(g)(3).           See

United States v. Johnson , 130 F.3d 1420, 1426 (10th Cir. 1997). Johnson’s

sentence of 237 months, however, was affirmed.            See id. at 1430-31.

       Johnson next filed the instant § 2255 habeas petition. In his petition,

Johnson raised two claims, both related to his sentencing. The district court


                                              -2-
determined that Johnson had not raised either sentencing claim in his direct

appeal and, therefore, the claims were procedurally barred unless Johnson could

show cause and prejudice for the default or demonstrate that a fundamental

miscarriage of justice would result if his claims were not considered.        See

Coleman v. Thompson , 501 U.S. 722, 750 (1991). The district court then

addressed Johnson’s assertion that his failure to raise the claims was the result of

ineffective assistance of counsel. The court prepared a comprehensive order

analyzing the merits of Johnson’s ineffective assistance claims.         See United

States v. Cox , 83 F.3d 336, 341 (10th Cir. 1996) (“A defendant may establish

cause for procedural default by showing he received ineffective assistance of

counsel.”). Based on that analysis, the district court determined that Johnson had

failed to show either constitutionally-deficient performance on the part of his

counsel or that he was prejudiced by the alleged deficient performance.         See

Strickland v. Washington , 466 U.S. 668, 687 (1984). The district court, thus,

entered judgment denying Johnson’s § 2255 petition.       1
                                                              Johnson then sought and




       Johnson has not presented any argument either to the district court or to
       1

this court that a fundamental miscarriage of justice would result if his claims were
not considered. “The fundamental miscarriage of justice exception is
available only where the prisoner supplements his constitutional claim with a
colorable showing of factual innocence.”   Herrera v. Collins , 506 U.S. 390, 404
(1993) (quotation omitted).

                                            -3-
was denied a COA.    2
                         In this appeal, Johnson raises the same issues he raised

before the district court.

       Johnson is not entitled to a COA unless he can make “a substantial

showing of the denial of a constitutional right.” 28 U .S.C. § 2253(c)(2).

Johnson can make that showing by demonstrating that: (1) the issues raised are

debatable among jurists, (2) a court could resolve the issues differently, or (3)

that the questions presented deserve further proceedings.      See Slack v. McDaniel ,

120 S. Ct. 1595, 1603-04 (2000).

       This court has reviewed Johnson’s request for a COA, Johnson’s appellate

brief, the district court’s order, and the entire record before us. That review

demonstrates that the district court’s disposition of Johnson’s § 2255 petition is

not deserving of further proceedings, debatable among jurists of reason, or

subject to different resolution on appeal. Accordingly, Johnson has failed to

make the required substantial showing of the denial of a constitutional right and

is not entitled to a COA.    See 28 U.S.C. § 2253(c)(1)(b). This court      denies

Johnson’s request for a COA for substantially those reasons set forth in the

district court’s order dated May 31, 2000, and     dismisses this appeal.

                                          ENTERED FOR THE COURT



      The district court also denied Johnson’s motion to proceed in forma
       2

pauperis on appeal. Johnson renewed that motion before this court. Johnson’s
renewed motion to proceed in forma pauperis on appeal is denied.

                                            -4-
Michael R. Murphy
Circuit Judge




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