                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  March 17, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 08-6216
 v.                                              (D.C. Nos. CR-98-93-D and
                                                       CV-07-1282-D)
 COREY ANTWAN WILSON,                                (W. D. Oklahoma)

          Defendant-Appellant.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, ANDERSON, and BRISCOE, Circuit Judges.


      Corey Wilson, a federal prisoner appearing pro se, seeks a certificate of

appealability (COA) in order to challenge the district court’s denial of his 28

U.S.C. § 2255 motion to vacate, set aside, or correct sentence. Because Wilson

has failed to satisfy the standards for the issuance of a COA, we deny his request

and dismiss the matter.

                                         I.

      On June 3, 1998, Wilson was indicted on six criminal counts, including one

count of conspiracy to possess with intent to distribute cocaine base, in violation


      *
        This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
of 21 U.S.C. § 846, four counts of distributing cocaine base, in violation of 21

U.S.C. § 841(a)(1), and one count of maintaining a place for the distribution and

use of a controlled substance, in violation of 21 U.S.C. § 856. Wilson ultimately

pled guilty to a single count of distribution and, on June 1, 1999, was sentenced

to life imprisonment.

      On direct appeal, this court vacated Wilson’s life sentence and remanded

for resentencing due to a drug quantity calculation error. United States v. Wilson,

229 F.3d 1165, 2000 WL 1199101 (10th Cir. Aug. 23, 2000) (unpublished order

and judgment) (Wilson I). In doing so, this court concluded that the evidence

presented at the time of sentencing was insufficient to support the district court’s

“attribut[ion of] 1590.8 grams of crack cocaine to” Wilson, id. at *3, but was

sufficient to support “a total of some 711 grams,” id. at *5. On remand, the

district court, relying on the drug quantity calculations affirmed by this court in

Wilson I, resentenced Wilson to 360 months’ imprisonment. On direct appeal

from the resentencing, this court affirmed the sentence imposed by the district

court. United States v. Wilson, 195 F. App’x 753, 755, 760 (10th Cir. 2006)

(Wilson II). The Supreme Court subsequently denied Wilson’s petition for writ

of certiorari. Wilson v. United States, 549 U.S. 1146 (2007).

      On November 13, 2007, Wilson filed a § 2255 motion to vacate, set aside,

or correct sentence asserting that his counsel at resentencing and on appeal from

resentencing were ineffective for failing to challenge the validity of the “pre-

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Apprendi admission” of he and his counsel that his count of conviction involved

10 grams of crack cocaine. ROA, Vol. 1 at 56-57. In support of his claim,

Wilson cited to the position adopted by the concurring opinion in United States v.

Buonocore, 416 F.3d 1124, 1137 (10th Cir. 2005), that “[a] factual admission by a

defendant that the government can prove drug quantity by a preponderance of the

evidence, without more, simply does not fulfill the requirements of a voluntary

and knowing waiver of the defendant’s Sixth Amendment Apprendi rights.”

      The district court denied Wilson’s § 2255 motion on the merits. In doing

so, the district court first noted that the position urged by the concurrence in

Buonocore “was rejected by the majority of the panel” and thus did not represent

controlling Tenth Circuit precedent. ROA, Vol. 1 at 81. More importantly, the

district court noted that in Wilson II, this court agreed with Wilson that the

district court at resentencing violated United States v. Booker, 543 U.S. 220

(2005), by basing his sentence on facts that were neither admitted by him nor

found by a jury, i.e., the 711 gram drug quantity affirmed by this court in Wilson

I, but determined that this error was harmless beyond a reasonable doubt because

the district court, at the time of resentencing, “also imposed an identical

alternative sentence of 30 years’ imprisonment in the event the Guidelines were

declared unconstitutional by the Supreme Court.” 195 F. App’x at 755. In light

of these facts, the district court concluded, Wilson was not prejudiced by his

counsel’s failure to challenge the validity of the “pre-Apprendi” admission either

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at resentencing or upon appeal from resentencing. App, Vol. 1 at 82. More

specifically, the district court concluded that even if Wilson’s counsel had

successfully challenged the validity of his “pre-Apprendi” admission, it “would

not have affected his sentence.” Id.

      Wilson has since filed a timely notice of appeal from the district court’s

order denying his § 2255 motion, as well as an application for COA.

                                          II.

      The issuance of a COA is a jurisdictional prerequisite to an appeal from the

denial of a § 2255 motion. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). A

COA may be issued “only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2553(c)(2). To make such a

showing, an applicant must demonstrate “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)

(citation and internal quotation marks omitted).

      After reviewing Wilson’s application for COA and the record on appeal, we

conclude he has failed to establish his entitlement to a COA. There is no dispute

that the district court, in resolving Wilson’s § 2255 motion, properly identified

the correct standards for ineffective assistance of counsel claims set forth in

Strickland v. Washington, 466 U.S. 668 (1984). Further, we are not persuaded


                                          4
that reasonable jurists could debate whether Wilson’s ineffective assistance claim

should have been resolved in a different manner. Indeed, we conclude it is

indisputable, given the procedural history of this case, that Wilson was not

prejudiced by his counsels’ failure to challenge the validity of his “pre-Apprendi”

admission. In short, the record firmly establishes that Wilson’s “pre-Apprendi”

admission had no impact on the sentence ultimately imposed on him by the

district court at resentencing.

      The application for COA is DENIED and the matter is DISMISSED.

Wilson’s motion for leave to proceed in forma pauperis on appeal is DENIED.



                                             Entered for the Court


                                             Mary Beck Briscoe
                                             Circuit Judge




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