                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                     January 11, 2007
                                TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                       Clerk of Court



U N ITED STA TES O F A M ER ICA,

              Plaintiff-Appellee,                       No. 06-4094
                                                     (District of Utah)
       v.                                     (D.C. Nos. 1:05-CV-142-PG C and
                                                     1:00-CR-51-PGC)
TODD HAROLD COOPER,

              Defendant-Appellant.



                                     ORDER


Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.




      Todd Harold Cooper, appearing pro se, seeks to appeal the district court’s

denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence.

The matter is before this court on Cooper’s request for a certificate of

appealability (“COA”). See 28 U.S.C. § 2253(c)(1)(B) (providing no appeal may

be taken from a “final order in a proceeding under section 2255” unless the

movant first obtains a COA). Cooper’s motion to proceed in form a pauperis on

appeal is granted.

      A jury found Cooper guilty of bank robbery, in violation of 18 U.S.C.

§ 2113, and using a firearm during the commission of a crime of violence, in
violation of 18 U.S.C. § 924(c)(1)(A)(ii). Applying the “three strikes” provision

set out in 18 U.S.C. § 3559(c)(1), the district court sentenced Cooper to life

imprisonment on the bank robbery conviction and a consecutive seven-year term

of imprisonment on the firearm conviction. Cooper’s convictions and sentences

were affirmed by this court on direct appeal. United States v. Cooper, 375 F.3d

1041, 1054 (10th Cir. 2004).

      Cooper filed the instant § 2255 motion on November 18, 2005, raising six

claims: (1) the sentence imposed for the bank robbery conviction exceeded the

statutory maximum set out in 18 U.S.C. § 2113(a) and the district court failed to

state in open court the rationale for imposing the life sentence; (2) the trial court

incorrectly calculated his offense level under the United States Sentencing

Guidelines; (3) his Sixth Amendment rights were violated by the application of

the § 3559(c)(1) enhancement because the judge found facts relating to whether

his prior felony convictions w ere part of a common scheme or plan; (4) his Fifth

and Sixth Amendment rights were violated because the issue of the existence of

his prior felony convictions w as not presented to a jury; and (5) his appellate

counsel was ineffective for failing to raise claims on direct appeal, failing to

object to the Presentence Investigation Report, and failing to properly present

arguments to this court on direct appeal. The district court considered each of

Cooper’s arguments in turn and denied relief. In so ruling, the court noted, inter

alia, that (1) Cooper was sentenced pursuant to statute, not the Sentencing

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Guidelines, his sentence did not exceed the statutory maximum, and at sentencing

the court stated the guidelines sentence was “superseded by the mandatory life

sentence by statute”; (2) even if the Presentence Report improperly failed to

consolidate certain prior felonies, Cooper had at least five different serious

violent felony convictions that triggered the application of 18 U.S.C.

§ 3559(c)(1); (3) Cooper’s other claims relating to his sentencing were barred by

Almendarez-Torres v. United States, 523 U.S. 224, 228 (1998) and United States

v. Bellam y, 411 F.3d 1182, 1188 (10th Cir. 2005); and (4) Cooper failed to

demonstrate he was prejudiced by his counsel’s alleged ineffective assistance.

      To be entitled to a COA, Cooper 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 “that reasonable jurists could debate w hether (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.” M iller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations

omitted); see also Slack v. M cDaniel, 529 U.S. 474, 484-85 (2000) (holding that

when a district court dismisses a habeas petition on procedural grounds, a

petitioner is entitled to a COA only if he shows both that reasonable jurists w ould

find it debatable w hether he had stated a valid constitutional claim and debatable

whether the district court’s procedural ruling was correct). In evaluating whether

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

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

claims. M iller-El at 338. Although Cooper 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 Cooper’s application for a COA and

appellate filings, the district court’s order, and the entire record on appeal

pursuant to the framew ork set out by the Supreme Court in M iller-El, this court

concludes Cooper is not entitled to a COA. The district court’s resolution of

Cooper’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.

Accordingly, this court denies Cooper’s request for a COA and dismisses this

appeal.

                                        Entered for the Court
                                        ELISABETH A. SHUM AKER, Clerk


                                        By
                                                Deputy Clerk




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