                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                   UNITED STATES COURT OF APPEALS                   April 3, 2015

                                TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                    Clerk of Court


UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
                                                        No. 14-1439
                                            (D.C. Nos. 1:13-CV-02980-RBJ and
v.
                                                  1:11-CR-00445-RBJ-1)
                                                         (D. Colo.)
STYLIOS ALTON TRACHANAS,

             Defendant - Appellant.


                      ORDER DENYING CERTIFICATE
                          OF APPEALABILITY


Before GORSUCH, MURPHY, and HOLMES, Circuit Judges.



      This matter is before the court on Stylios Trachanas’s Application for

Certificate of Appealability and Combined Opening Brief. Trachanas seeks a

certificate of appealability (“COA”) so he can appeal the district court’s denial of

his 28 U.S.C. § 2255 motion. See 28 U.S.C. § 2253(c)(1)(B) (providing that

unless a movant obtains a COA “an appeal may not be taken to the court of

appeals from[] the final order in a proceeding under section 2255”). Because he

has not “made a substantial showing of the denial of a constitutional right,” id.

§ 2253(c)(2), this court denies Trachanas’s request for a COA and dismisses this

appeal.
      Trachanas pleaded guilty to three federal crimes: (1) possession of a

firearm and ammunition by a prohibited person, in violation of 18 U.S.C.

§§ 922(g)(1), 924; (2) possession of marijuana with intent to distribute, in

violation of 21 U.S.C. § 841(a)(1), (b)(1)(C); and (3) possession of a firearm that

is not registered in the National Firearms Registration and Transfer Act,

26 U.S.C. §§ 5841, 5861(d), 5871. The district court sentenced Trachanas to

serve a term of 110 months’ imprisonment as to each count, with the sentences

ordered to run concurrently. Trachanas filed a direct appeal to this court, but

voluntarily dismissed that appeal before filing his opening brief. United States v.

Trachanas, No. 12-1278 (10th Cir. Jan. 14, 2013). Trachanas then filed the

instant § 2255 motion in district court raising numerous claims of ineffective

assistance of counsel.

      The district court set the § 2255 motion for an evidentiary hearing and

appointed counsel to represent Trachanas. Some three weeks before the

scheduled hearing, Trachanas sent the district court an ex parte letter indicating a

conflict had arisen between him and appointed counsel. The district court entered

a minute order informing Trachanas he could discharge appointed counsel if he so

chose, but that “in the context and history of the case and [Trachanas’s]

disagreement with the manner in which a succession of lawyers have represented

him, the Court declines to appoint another lawyer to represent him in this matter.”

Trachanas terminated appointed counsel on the same day he received the district

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court’s minute order. Trachanas then sought clarification as to whether the

district court would appoint a new attorney to serve as standby or co-counsel.

The district court again indicated it would not appoint any type of replacement

counsel.

      Between his termination of appointed counsel and the date of the scheduled

hearing, Trachanas filed several motions; he did not, however, file any

applications for subpoenas. For that reason, none of his witnesses appeared for

the evidentiary hearing and his claims of ineffective assistance of counsel were

completely lacking in evidentiary support. Given his history of proceeding pro

se, familiarity with subpoena applications, and lack of any reasonable excuse for

failing to assure his witnesses would attend the evidentiary hearing, the district

court denied Trachanas’s request for a continuance. Given the lack of evidence,

the district court denied Trachanas’s § 2255 motion on the merits.

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

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

(2003). To be entitled to a COA, he 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 “reasonable jurists could debate whether (or, for

that matter, agree that) the [motion] should have been resolved in a different

manner or that the issues presented were adequate to deserve encouragement to

proceed further.” Miller-El, 537 U.S. at 336 (quotations omitted). In evaluating

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whether Trachanas 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 he 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 Trachanas’s appellate filings, the district

court’s orders, and the entire record before this court pursuant to the framework

set out by the Supreme Court in Miller-El, we conclude Trachanas is not entitled

to a COA. Under the narrow facts of this case, particularly Trachanas’s lengthy

history of failing to work constructively with appointed counsel and his history

and familiarity with proceeding pro se, the district court did not err in refusing to

appoint another attorney to represent Trachanas or in refusing to excuse

Trachanas’s failure to make sure he had evidence to submit at the hearing on his

§ 2255 motion. That being the case, there is no doubt as to the correctness of the

district court’s merits resolution of Trachanas’s § 2255 motion at the hearing on

July 22, 2014 (the transcript of which is set out in the supplemental record filed

in this court on November 21, 2014). Accordingly, this court DENIES




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Trachanas’s request for a COA and DISMISSES this appeal. Trachanas’s request

to proceed on appeal in forma pauperis is GRANTED.

                                      ENTERED FOR THE COURT


                                      Michael R. Murphy
                                      Circuit Judge




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