                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  June 24, 2010
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT



UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
                                                        No. 10-3033
                                                        (D. Kansas)
v.
                                           (D.C. Nos. 2:09-CV-02190-CM and
                                                 2:06-CR-20082-CM-1)
CHRISTOPHER R. KEMP,

             Defendant - Appellant.


                      ORDER DENYING CERTIFICATE
                          OF APPEALABILITY


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.


      Christopher R. Kemp, a federal prisoner, 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 Kemp’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 Kemp 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).

      Kemp was charged in a two-count indictment with being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) and 924(a)(2); and
with possessing an unregistered firearm, in violation of 26 U.S.C. § 5841,

5861(d), and 5871. Kemp entered into a written plea agreement with the

Government. He agreed to plead guilty to possessing the unregistered firearm and

the Government agreed to (1) dismiss the felon-in-possession charge, (2) not file

any additional charges against him arising out of the incident, and (3) recommend

that he receive a two-level reduction in his offense level for acceptance of

responsibility. The written plea agreement also contained a waiver of Kemp’s

right to directly appeal or collaterally attack his conviction and sentence.

      Notwithstanding the waiver, Kemp filed the instant § 2255 motion

containing a challenge to his sentence. In its response, the Government sought to

enforce the waiver. The district court concluded (1) the issues Kemp sought to

raise fell within the scope of the appeal waiver and (2) he knowingly and

voluntarily entered into the plea agreement and waiver. See United States v.

Hahn, 359 F.3d 1315, 1325-27 (10th Cir. 2004). The court further concluded that

enforcing the waiver would not result in a miscarriage of justice, applying

Strickland v. Washington, 466 U.S. 668, 687-88 (1984) and rejecting Kemp’s

argument that the waiver was rendered invalid by the ineffective assistance of

counsel in connection with its negotiation. See Hahn, 359 F.3d at 1325-27;

United States v. Cockerham, 237 F.3d 1179, 1183 (10th Cir. 2001). Accordingly,

the district court enforced the waiver and denied Kemp’s § 2255 motion.




                                          -2-
      In his counseled appellate brief, Kemp argues (1) the waiver was not made

knowingly and voluntarily and (2) enforcement of the waiver constitutes a

miscarriage of justice because he received ineffective assistance of counsel in

connection with the negotiation of the waiver. Kemp also argues the district court

abused its discretion by not holding an evidentiary hearing. This court cannot

reach the merits of the claims raised in Kemp’s § 2255 motion unless we first

grant him a COA. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). To be

entitled to a COA, Kemp 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 “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.” Miller-El, 537 U.S. at 336 (quotations omitted). In evaluating whether

Kemp 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 Kemp 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 Kemp’s application for a COA and appellate

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

framework set out by the Supreme Court in Miller-El, this court concludes Kemp

                                          -3-
is not entitled to a COA. The district court’s resolution of Kemp’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. Because Kemp’s claims were

capable of being resolved on the record, the district court did not abuse its

discretion by failing to hold an evidentiary hearing. See Torres v. Mullin, 317

F.3d 1145, 1161 (10th Cir. 2003). Accordingly, this court denies Kemp’s request

for a COA and dismisses this appeal.

                                                ENTERED FOR THE COURT


                                                Michael R. Murphy
                                                Circuit Judge




                                          -4-
