                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                   UNITED STATES COURT OF APPEALSNovember 4, 2013
                                                               Elisabeth A. Shumaker
                                TENTH CIRCUIT                      Clerk of Court



UNITED STATES OF AMERICA,

              Plaintiff - Appellee,
                                                        No. 12-6321
                                                     (W.D. Oklahoma)
       v.
                                              (D.C. Nos. 5:12-CV-00711-F and
                                                    5:10-CR-00153-F-1)
KENYATTA WAYNE ACEY,

              Defendant - Appellant.


                       ORDER DENYING CERTIFICATE
                           OF APPEALABILITY


Before LUCERO, McKAY, and MURPHY, Circuit Judges.


      Federal prisoner, Kenyatta Wayne Acey, 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 Acey’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 Acey 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).

      Acey pleaded guilty to one count of possession with intent to distribute

cocaine base (crack), in violation of 21 U.S.C. § 841(a)(1). He was sentenced to
262 months’ imprisonment. Although the written plea agreement contained a

waiver of Acey’s right to directly appeal or collaterally attack his conviction and

sentence, he filed a direct appeal with this court. United States v. Acey, 247 F.

App’x 808 (10th Cir. 2011) (unpublished disposition). This court enforced the

waiver and dismissed Acey’s appeal. Id. at 810.

      Acey filed the instant § 2255 motion on June 22, 2012, asserting he should

have been sentenced pursuant to the Fair Sentencing Act of 2010. See Dorsey v.

United States, 132 S. Ct. 2321, 2331 (2012). The district court concluded this

claim fell within the scope of a knowing and voluntary 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.

Accordingly, the court enforced the waiver as to the Fair Sentencing Act claim.

      The district court resolved Acey’s ineffective assistance claim relating to

the negotiation of his plea agreement on the merits after determining that claim

did not fall within the waiver. See United States v. Cockerham, 237 F.3d 1179,

1183 (10th Cir. 2001). The court, however, denied relief, concluding Acey’s

nonspecific allegations of ineffective assistance were insufficient to show

deficient performance. The court further concluded Acey failed to show any

prejudice flowing from counsel’s performance.

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

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

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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 v. Cockrell, 537 U.S. 322, 336 (2003) (quotations

omitted). In evaluating whether Acey 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 Acey 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 Acey’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 he is

not entitled to a COA. The district court’s resolution of Acey’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. Accordingly, this court denies Acey’s

request for a COA and dismisses this appeal.

                                            ENTERED FOR THE COURT


                                            Michael R. Murphy
                                            Circuit Judge




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