                                                                          FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                   UNITED STATES COURT OF APPEALS                      July 29, 2009
                                                                   Elisabeth A. Shumaker
                                TENTH CIRCUIT                          Clerk of Court


UNITED STATES OF AMERICA,

              Plaintiff - Appellee,
                                                        No. 08-4226
                                                          (D. Utah)
v.
                                                (D.C. Nos. 2:08-CV-00700-TS
                                                  and 2:04-CR-00387-TS-1)
RANDALL C. MOYER,

              Defendant - Appellant.


                       ORDER DENYING CERTIFICATE
                           OF APPEALABILITY


Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.


      Proceeding pro se, Randall Moyer 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 Moyer’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 Moyer 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).

      Moyer pleaded guilty to one count of attempting to manufacture fifty grams

or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1). He was
sentenced to 240 months’ imprisonment. Although the written plea agreement

contained a waiver of Moyer’s right to directly appeal or collaterally attack his

conviction and sentence, he filed a direct appeal with this court. United States v.

Moyer, 247 Fed. App’x 996 (10th Cir. 2007) (unpublished disposition). Counsel

filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and the

government argued Moyer waived his right to appeal pursuant to the terms of the

plea agreement. Id. at 998. This court enforced the waiver and dismissed

Moyer’s appeal. Id.

      Moyer filed the instant § 2255 motion on September 15, 2008, challenging

the validity of his plea based on a claim of ineffective assistance of counsel. See

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

court denied Moyer’s § 2255 motion, concluding his claim failed because his

conclusory allegations of ineffective assistance were insufficient to overcome

statements he made in open court during the plea proceedings that he was

knowingly and voluntarily entering into the plea agreement. See Lasiter v.

Thomas, 89 F.3d 699, 702-03 (10th Cir. 1996).

       To be entitled to a COA, Moyer 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

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proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations

omitted). In evaluating whether Moyer 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 Moyer 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 Moyer’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 Moyer’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 Moyer’s request for a COA and dismisses this appeal. Moyer’s

motion to proceed in forma pauperis on appeal is granted.

                                                ENTERED FOR THE COURT


                                                Michael R. Murphy
                                                Circuit Judge




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