                                                                            FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS                     November 30, 2005
                                TENTH CIRCUIT
                                                                            Clerk of Court

 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
 v.                                                     No. 05-2126
 MARVIN JOHN COBB,                         (D.C. Nos. CV-04-1026 WPJ/ACT and
                                                     CR-03-244 WPJ)
       Defendant-Appellant.                             (D.N.M.)




                                     ORDER


Before BRISCOE, LUCERO, and MURPHY , Circuit Judges.


      Marvin John Cobb, a federal prisoner proceeding pro se, requests a

certificate of appealability (“COA”) so that he may appeal the district court’s

denial of his habeas petition that he filed pursuant to 28 U.S.C. § 2255.

      Cobb, who has a prior state felony conviction, pled guilty to possession

with intent to distribute marijuana in violation of 21 U.S.C. § 841, and was

sentenced to the statutory minimum sentence of sixty months’ incarceration.

Cobb did not appeal his conviction or sentence.

      On September 10, 2004, Cobb filed a § 2255 petition, claiming ineffective

assistance of counsel and involuntary guilty plea. The district court referred the

matter to a magistrate judge, who recommended that Cobb’s petition be
dismissed. The district court adopted the magistrate judge’s report and

recommendation, overruled Cobb’s timely objections, and denied Cobb’s request

for habeas relief. Cobb requested a COA as to his claims of ineffective assistance

of counsel and involuntary guilty plea. On April 28, 2005, the district court

declined to grant a COA, but granted Cobb’s motion to proceed in forma pauperis.

      Unless the petitioner first obtains a COA, no appeal may be taken from a

final order disposing of a § 2255 petition. See 28 U.S.C. § 2253(c)(1)(B). A

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

denial of a constitutional right.” 28 U.S.C. § 2253(2)(c). In determining whether

Cobb has satisfied this burden, this court undertakes “a preliminary, though not

definitive, consideration of the [legal] framework” applicable to each of his

claims.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003). To be entitled to a

COA, Cobb need not establish that his appeal will succeed. Instead, he must

“prove something more than the absence of frivolity or the existence of mere

good faith.” Id. (internal quotations omitted).

      Based upon our review of the record on appeal, we conclude that Cobb is

not entitled to a COA because no reasonable jurist would disagree with the

district court’s resolution of the issues in Cobb’s habeas petition.

      1. Ineffective Assistance of Counsel

      Cobb, who is a Vietnam veteran allegedly suffering from post-traumatic

stress disorder, claims that his counsel was ineffective for failing to argue that his

mental condition was a mitigating factor that should reduce his sentence. The
only support in the record for Cobb’s claim, however, are Cobb’s own statements

during his sentencing hearing that he “suffered from panic attacks about a week

and half to two weeks prior . . . .” Notably, the district court rejected Cobb’s

statements in this regard. Aside from his statements at sentencing, Cobb has not

offered any evidence to show that he suffered from diminished capacity at the

time of his offense.

      Cobb additionally maintains that his counsel was deficient for failing to

move for a downward departure. The magistrate judge, however, found that

Cobb’s counsel was concerned about invalidating the plea agreement by filing a

motion for a downward departure. Further, pursuant to the terms of the plea

agreement, Cobb agreed that he would not seek a downward departure.

      The district court held that Cobb failed to demonstrate that his attorney’s

conduct was deficient pursuant to Strickland v. Washington, 466 U.S. 668, 687

(1984). The district court also held that Cobb failed to show that his counsel’s

performance prejudiced his defense. As to his arguments regarding diminished

capacity and a downward departure motion, Cobb could not establish prejudice

because the judge sentenced him to the statutory minimum of sixty months.

      No reasonable jurist could conclude that Cobb made a substantial showing

of a violation of his constitutional rights in his ineffectiveness claims.

      2. Involuntary Guilty Plea

      Cobb asserts that his guilty plea was involuntary because he conferred with

his attorney for only twenty minutes about the agreement, and because he did not
read the agreement.

      The district court held that Cobb’s plea was constitutionally valid because

it was voluntary and intelligently given. See Bousley v. United States, 523 U.S.

614, 618 (1998). The record does not support Cobb’s allegation that his guilty

plea was involuntary. At the plea hearing, Cobb acknowledged that he

understood and signed the plea agreement. The plea agreement stated that, in

signing it, Cobb represented that his guilty plea was “freely and voluntarily made

and not the result of force or threats or promises apart from those set forth in the

plea agreement.” Plea Agreement, at 6.

      No reasonable jurist could disagree with the district court’s resolution of

Cobb’s claim regarding the voluntariness of his guilty plea.

      Cobb’s request for a COA is DENIED, and this matter is DISMISSED.


                                              Entered for the Court


                                              Mary Beck Briscoe
                                              Circuit Judge
