                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                 September 18, 2008
                            FOR THE TENTH CIRCUIT
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                          No. 08-5053
    v.                                       (D.C. Nos. 4:04-CV-00367-TCK-FHM
                                                   & 4:00-CR-00157-TCK-6)
    EVERETT LEE CAVELY,                                   (N.D. Okla.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, PORFILIO, and TYMKOVICH, Circuit Judges.



         Everett Lee Cavely seeks a certificate of appealability (COA) pursuant to

28 U.S.C. § 2253(c)(1)(B) to challenge the district court’s denial of his motion to

vacate, set aside or correct sentence under 28 U.S.C. § 2255. We deny his request

for a COA and dismiss the appeal.




*
       After examining the brief and 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); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
         Mr. Cavely was convicted of various drug and firearm offenses and

sentenced to 440 months in prison. We affirmed his conviction and sentence,

United States v. Cavely, 318 F.3d 987 (10th Cir.), and the Supreme Court denied

him a writ of certiorari, Cavely v. United States, 539 U.S. 960 (2003). He timely

filed his § 2255 motion but moved to amend it after the one-year filing deadline

expired. Although the district court initially permitted him to amend his § 2255

motion, the court recognized in its March 26, 2008, order that the amendment was

untimely. Nevertheless, the court found that Mr. Cavely’s added claims under

Blakely v. Washington, 542 U.S. 296 (2004), were foreclosed because Blakely

does not apply retroactively.

         As for his originally filed § 2255 motion, the court determined that none of

Mr. Cavely’s ineffective assistance of counsel claims warranted relief under

Strickland v. Washington, 466 U.S. 668 (1984). Specifically, the court found that

his trial attorney had not been ineffective in failing to impeach police officers on

the precise timing of Mr. Cavely’s consent to search his business or in failing to

question officers on their justification for performing a protective sweep of his

home. The court also concluded that Mr. Cavely’s appellate attorney had not

rendered ineffective assistance by declining to challenge the sufficiency of the

evidence underlying an element of a firearms conviction. Mr. Cavely appealed,

but the district court denied a COA. His application for a COA is now before this

court.

                                           -2-
       An appeal from the district court’s decision may not be taken absent a grant

of COA by this court. 28 U.S.C. § 2253(c)(1)(B). The issuance of a COA is

jurisdictional, Miller-El v. Cockrell, 537 U.S. 322, 336 (2003), and requires an

applicant to make “a substantial showing of the denial of a constitutional right,”

28 U.S.C § 2253(c)(2). An applicant “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, 537 U.S. at

327.

       The district court refused to grant a COA because Mr. Cavely failed to

make a substantial showing that he was denied a constitutional right and failed to

cite authority indicating that the issues presented could be decided differently.

We agree with this assessment. Nothing in Mr. Cavely’s appellate materials, the

district court’s orders, or the relevant legal authority suggests that he was denied

a constitutional right or that reasonable jurists would decide the case differently.

Accordingly, for substantially the same reasons as articulated by the district court

in its orders dated March 26, 2008, and April 4, 2008, we DENY Mr. Cavely’s

request for a COA and DISMISS the appeal.


                                                      Entered for the Court

                                                      John C. Porfilio
                                                      Circuit Judge

                                          -3-
