                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    July 23, 2014
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



UNITED STATES OF AMERICA,

              Plaintiff - Appellee,
                                                         No. 14-3116
v.
                                                          (D. Kansas)
                                              (D.C. Nos. 2:13-CV-02306-CM and
SHERI L. ZUBER,
                                                    2:10-CR-20135-CM-1)
              Defendant - Appellant.


                       ORDER DENYING CERTIFICATE
                           OF APPEALABILITY


Before GORSUCH, MURPHY, and HOLMES, Circuit Judges.



      This matter is before the court on Sheri Zuber’s pro se requests for a

certificate of appealability (“COA”) and to proceed on appeal in forma pauperis.

Zuber seeks a COA so she can appeal the district court’s denial of her 28 U.S.C.

§ 2255 motion. See 28 U.S.C. § 2253(c)(1)(B) (providing no appeal is allowed

from a “final order in a proceeding under section 2255” unless the movant first

obtains a COA). Because she has not “made a substantial showing of the denial

of a constitutional right,” id. § 2253(c)(2), this court denies Zuber’s request for a

COA and dismisses this appeal. Zuber has completely failed to advance a

“reasoned, nonfrivolous argument on the law and facts.” Watkins v. Leyba, 543
F.3d 624, 627 (10th Cir. 2008). Thus, this court also denies her request to

proceed on appeal in forma pauperis.

      Following a jury trial, Zuber was convicted of three counts of possessing

illegal drugs with intent to distribute. United States v. Zuber, 485 F. App’x 921,

922 (10th Cir. 2012). This court affirmed her convictions and sentence on direct

appeal. Id. at 922-24. Zuber then filed the instant § 2255 motion (1) raising

claims of ineffective assistance of counsel and (2) challenging the validity of her

sentence. In a thorough order, the district court concluded Zuber’s claims lacked

a legitimate basis in law or fact. Zuber appeals.

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

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

(2003). To be entitled to a COA, she must make “a substantial showing of the

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

showing, Zuber 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 she has

satisfied this burden, we undertake “a preliminary, though not definitive,

consideration of the [legal] framework” applicable to each of her claims. Id. at

338. Although Zuber need not demonstrate her appeal will succeed to be entitled




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to a COA, she must “prove something more than the absence of frivolity or the

existence of mere good faith.” Id.

      Having undertaken a review of Zuber’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 Zuber is not entitled to a COA. As

cogently explained in the district court order, the record in this case conclusively

demonstrates the claims set out in Zuber’s § 2255 motion lack any legitimate

grounding in either fact or law. Accordingly, this court DENIES Zuber’s request

for a COA and DISMISSES this appeal. For that same reason, we DENY

Zuber’s request to proceed on appeal in forma pauperis. Thus, Zuber is obligated

to immediately remit the full amount of the appellate filing fee.

                                           ENTERED FOR THE COURT


                                           Michael R. Murphy
                                           Circuit Judge




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