                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                 UNITED STATES COURT OF APPEALS                           MAR 31 2003

                                  TENTH CIRCUIT                       PATRICK FISHER
                                                                               Clerk



 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 02-3321
                                                (D.C. No. 02-CV-3099-MLB
 v.
                                                  and 99-CR-10094-MLB)
                                                        (D. Kansas)
 PHILLIP L. HUGGINS,

          Defendant - Appellant.




                                     ORDER *


Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.


      Phillip L. Huggins appeals pro se the district court’s denial of his petition

for a writ of habeas corpus under 28 U.S.C. § 2255. The district court did not act

on Mr. Huggins’ request for a certificate of appealability (COA) within thirty

days from his filing of a notice of appeal, so we deem the application denied by

the district court. United States v. Kennedy, 225 F.3d 1187, 1193, n.3 (10th Cir.

2000). Mr. Huggins asks this court for a certificate of appealability. Exercising


      After examining appellant’s brief and the appellate record, this panel has
      *

determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument.
jurisdiction under 28 U.S.C. § 2253(c)(1) (2002), we see no basis for an appeal

and deny a COA.

      A jury convicted Mr. Huggins of six counts of distributing crack cocaine

and one count of possessing crack cocaine with intent to distribute. He was

sentenced to 157 months in prison. He appealed his conviction and sentence to

this court, arguing the district court erred in denying his motion for a continuance

and in computing his sentence. We affirmed the district court judgment and

sentence in an unpublished opinion. United States v. Huggins, No. 02-3002, 2000

WL 1820477 (10th Cir. Dec. 12, 2000). Mr. Huggins then filed this habeas

petition in the district court alleging ineffective assistance of counsel on three

grounds, as well as a violation of Apprendi v. New Jersey, 530 U.S. 466 (2000).

The district court denied the motion.

      Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 123 S. Ct. 1029,

1039 (2003). A COA can issue only “if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A

petitioner satisfies this standard by demonstrating that jurists of reason could

disagree with the district court’s resolution of his constitutional claims or that

jurists could conclude the issues presented are adequate to deserve encouragement

to proceed further.” Miller-El, 123 S. Ct. at 1034. “The COA determination

under § 2253(c) requires an overview of the claims in the habeas petition and a


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general assessment of their merits.” Id. at 1039. “This threshold inquiry does not

require full consideration of the factual or legal bases adduced in support of the

claims. In fact, the statute forbids it.” Id. While Mr. Huggins, in applying for a

COA, is not required to prove the merits of his case, he must demonstrate

“something more than the absence of frivolity or the existence of mere good faith

on his part.” Id. at 1040 (internal quotations omitted).

        With these principles in mind, we have carefully reviewed the record of

these proceedings and the order of the district court. As to the ineffective

assistance claims, we point out (as did the district court, Rec., doc. 53 at 2) that

this court has previously noted Mr. Huggins’ appointed counsel’s competent

representation at trial as well as the overwhelming evidence of guilt revealed by

the record. Huggins, 2000 WL 1820477 at **2. Even so, the district court

carefully addressed each of Mr. Huggins’ contentions of ineffective assistance of

counsel in his habeas petition. We agree with the well-reasoned analysis of the

district court. Furthermore, as to the issue of an Apprendi violation, the district

court correctly pointed out that “[t]he indictment charged defendant with

distribution of specific amounts of crack cocaine (Doc. 1). Defendant’s sentence

did not exceed the statutory maximum. He has no Apprendi claim.” Rec., doc. 53

at 8.

        We conclude that reasonable jurists would not debate the resolution of the


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constitutional claims presented and therefore DENY the request for a certificate

of appealability.

                                      ENTERED FOR THE COURT


                                      Stephanie K. Seymour
                                      Circuit Judge




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