                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                       April 20, 2009
                                TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                       Clerk of Court

 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                      No. 08-1487
 v.                                                      (D. Colorado)
 JAMES HUBER, a/k/a James Hubert,               (D.C. No. 07-cv-02576-WYD)
 a/k/a James Jay Huber,

              Defendant - Appellant.


                           ORDER DENYING
                    CERTIFICATE OF APPEALABILITY *


Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this proceeding. See Fed. R. App. P. 34(a)(2); 10 th Cir. R. 34.1(G). The case

is therefore ordered submitted without oral argument.

      This matter is before the court on James Huber’s pro se request for a

certificate of appealability (“COA”). Huber 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).


      *
       This order is not binding precedent except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Because Huber 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.

      Huber was indicted on multiple weapons and bank robbery charges in

multiple federal districts. 1 He pleaded guilty to one weapons charge and two

armed bank robbery charges in exchange for the government agreeing to dismiss

the remaining charges. The plea agreement provided that Huber would serve a

total term of forty years’ imprisonment on all convictions, including a bank

robbery conviction the government had already obtained. The district court

accepted the plea and imposed a sentence of 333 months’ imprisonment. 2

      Huber did not file a direct appeal, but instead filed the instant § 2255

motion raising the following claims: (1) his attorney was ineffective in various

particulars; (2) some of the charges were tainted by prosecutorial vindictiveness;

and (3) he was denied due process when the district court dissuaded him from

seeking a new attorney prior to the sentencing proceeding. The district court

ruled that the record conclusively demonstrated Huber was not entitled to relief.

      1
       Based on Huber’s desire to resolve all charges against him pursuant to a
plea agreement, charges from the United States District Court for the Eastern
District of North Carolina and the United States District Court for the District of
Nebraska were transferred to the United States District Court for the District of
Colorado pursuant to Fed. R. Crim. P. 20(a).
      2
       This sentence, when combined with the sentence of 147 months’
imprisonment imposed in the previously obtained bank robbery conviction,
resulted in a total term of imprisonment of 40 years.

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Accordingly, the district court denied Huber’s request for an evidentiary hearing

and denied his § 2255 petition.

      The granting of a COA is a jurisdictional prerequisite to Huber’s appeal

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

336 (2003). To be entitled to a COA, Huber 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 Huber 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 Huber 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 Huber’s appellate filings, 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 Huber is not entitled to a COA. The

district court’s resolution of Huber’s § 2255 motion is not reasonably subject to

debate, and the issues he seeks to raise on appeal are not adequate to deserve




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further proceedings. Accordingly, this court DENIES Huber’s request for a COA

and DISMISSES this appeal.

                                           ENTERED FOR THE COURT


                                           Michael R. Murphy
                                           Circuit Judge




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