                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                    April 7, 2009
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
                                                        No. 08-8079
                                                       (D. Wyoming)
       v.
                                            (D.C. Nos. 1:05:CV-00081-WFD and
                                                  2:01-CR-00079-WFD-1)
ASHLEY LONZA WILLIAMS, III,

             Defendant - Appellant.


                         ORDER DENYING CERTIFICATE
                             OF APPEALABILITY


Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.


      This matter is before the court on Ashley L. Williams’s pro se request for a

certificate of appealability (“COA”). Williams seeks a COA so he can appeal the

district court’s denial of his 28 U.S.C. § 2255 motion. 28 U.S.C. § 2253(c)(1)(B).

Because Williams has not “made a substantial showing of the denial of a

constitutional right,” id. § 2253(c)(2), this court denies his request for a COA and

dismisses this appeal.

      The factual and procedural history of this case is set out in this court’s

opinion on direct appeal affirming Williams’s convictions. United States v.

Williams, 94 F. App’x 693, 694 (10th Cir. 2004). Thus, the general background

need not be repeated here, other than to note Williams was convicted, following a
jury trial, of conspiring to willfully and knowingly possess with intent to

distribute in excess of 500 grams of methamphetamine, in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(A). Id. In the instant § 2255 motion, Williams raised a

multitude of claims, including several claims of ineffective assistance of trial

counsel. In a thorough order, the district court reviewed Williams’s claims on the

merits and concluded the record conclusively demonstrated Williams was not

entitled to relief. Accordingly, the district court denied Williams’s request for an

evidentiary hearing and denied Williams’s § 2255 motion. See 28 U.S.C.

§ 2255(b) (providing that where the “files and records of the case conclusively

show that the prisoner is entitled to no relief,” the district court need not hold an

evidentiary hearing).

      In his application for a COA, 1 Williams asserts generally that he was

entitled to an evidentiary hearing on his multifocal claim of ineffective assistance

of appellate counsel. He also generally contends the district court committed

error in denying his § 2255 motion without obligating the government to “present

admissible evidence.” Williams does not, however, explain what additional

evidence or testimony is necessary to resolve his claims of ineffective assistance

of trial counsel.

      1
        Williams filed his application for a COA on December 9, 2008, but did not
file an appellate brief. This court sent Williams a written deficiency notice
regarding the missing appellate brief, but Williams did not file a timely response.
Accordingly, on February 4, 2009, this court entered an order noting that
Williams’s application for a COA would also be treated as his appellate brief.

                                          -2-
      The granting of a COA is a jurisdictional prerequisite to Williams’s appeal

from the denial of his § 2255 petition. Miller-El v. Cockrell, 537 U.S. 322, 336

(2003). To be entitled to a COA, Williams 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 “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.” Id. (quotations omitted). In evaluating

whether Williams 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 Williams 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 Williams’s appellate filing, the district

court’s order, and the entire record before this court pursuant to the framework

set out by the Supreme Court in Miller-El, we conclude Williams is not entitled to

a COA. The district court’s resolution of Williams’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. Furthermore, because Williams’s

motion could be properly and conclusively resolved on the basis of the record

alone, the district court did not err in refusing to hold an evidentiary hearing.

                                          -3-
28 U.S.C. § 2255(b). Accordingly, this court DENIES Williams’s request for a

COA and DISMISSES this appeal.

                                            ENTERED FOR THE COURT


                                            Michael R. Murphy
                                            Circuit Judge




                                      -4-
