                                                                           FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                   UNITED STATES COURT OF APPEALS January 8, 2010
                                                                Elisabeth A. Shumaker
                                TENTH CIRCUIT                       Clerk of Court


UNITED STATES OF AMERICA,

              Plaintiff - Appellee,
                                                        No. 09-3287
                                                         (D. Kansas)
v.
                                             (D.C. Nos. 2:09-CV-02074-CM and
                                                   2:05-CR-20067-CM-1)
DHEADRY LOYD POWELL,

              Defendant - Appellant.


                       ORDER DENYING CERTIFICATE
                           OF APPEALABILITY


Before LUCERO, McKAY, and MURPHY, Circuit Judges.



      Proceeding pro se, Dheadry Powell 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 Powell’s request for a certificate of

appealability (“COA”). 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). Because Powell has not “made a substantial showing of the

denial of a constitutional right,” this court denies his request for a COA and

dismisses this appeal. Id. § 2253(c)(2).
      Powell pleaded guilty to distribution of methamphetamine, in violation of

21 U.S.C. § 841(a)(1). The proceedings underlying the guilty plea have been

thoroughly explained by this court. United States v. Powell, 286 F. App’x 566,

567-71 (10th Cir. 2008). Although Powell signed a written plea agreement

containing a waiver of his right to directly appeal or collaterally attack his

conviction and sentence, he filed a direct appeal with this court. Id. at 567. The

Government sought to enforce the appellate waiver. Id. This court concluded (1)

the issues Powell sought to raise fell within the scope of the appeal waiver and

(2) he knowingly and voluntarily entered into the plea agreement and waiver. Id.

at 572-73. After further concluding that enforcing the waiver would not result in

a miscarriage of justice, this court granted the Government’s motion and

dismissed Powell’s appeal. Id. at 573; United States v. Hahn, 359 F.3d 1315,

1327 (10th Cir. 2004) (en banc).

      Powell filed the instant § 2255 motion on February 12, 2009, asserting

multiple ineffective assistance of counsel claims and a claim the district court

lacked subject matter jurisdiction 1 over his criminal proceedings because of the

prolonged delay in filing charges. The Government moved to dismiss Powell’s

§ 2255 motion based on the waiver contained in the written plea agreement. The



      1
       But see 18 U.S.C. § 3231 (“The district courts of the United States shall
have original jurisdiction, exclusive of the courts of the States, of all offenses
against the laws of the United States.”).

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district court granted the Government’s motion as to all of Powell’s claims except

the ineffective assistance claim relating to the negotiation of the plea agreement.

See United States v. Cockerham, 237 F.3d 1179, 1183 (10th Cir. 2001). The

court denied relief on that claim, concluding Powell knowingly and voluntarily

entered into the plea agreement.

      To be entitled to a COA, Powell 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 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.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations

omitted). In evaluating whether Powell 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 Powell 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 Powell’s application for a COA and

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

pursuant to the framework set out by the Supreme Court in Miller-El, this court

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

                                          -3-
§ 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 Powell’s request for a COA and dismisses this appeal.

                                              ENTERED FOR THE COURT


                                              Michael R. Murphy
                                              Circuit Judge




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