                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                     December 4, 2006
                                TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                       Clerk of Court


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

       Plaintiff-Appellee,
                                                        No. 06-3049
                                                     (District of K ansas)
v.
                                              (D.C. Nos. 04-CV-3123-JAR and
                                                     02-CR-40140-JAR)
CLINTON ODELL W EIDNER, II,

       Defendant-Appellant.



                                     OR DER


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




      Petitioner, Clinton Odell Weidner, II, seeks a certificate of appealability

(“COA”) so he can appeal the district court’s denial of the motion to vacate, set

aside, or correct sentence he brought pursuant to 28 U.S.C. § 2255. See 28 U.S.C.

§ 2253(c)(1)(B) (providing that a movant may not appeal the denial of a § 2255

motion unless the movant first obtains a COA). Because W eidner has not made a

substantial showing of the denial of a constitutional right, we deny his request

and dismiss this appeal.

      W eidner is the former president, chief executive officer, and general

counsel of Capital City Bank in Topeka, Kansas. He was charged in a seven-

count superseding indictment with conspiracy, making false bank entries, and
money laundering. The charges stemmed from a $1.5 million line of credit

W eidner extended to a bank customer. On the morning his trial began, W eidner

pleaded guilty to Counts 3 and 4 of the indictment. These two counts charged

W eidner with making false bank entries, reports, and transactions in violation of

18 U.S.C. § 1005. 1

      W eidner filed the instant § 2255 motion on April 19, 2004, alleging his

counsel’s ineffective assistance rendered his guilty plea unknowing and

involuntary. Specifically, W eidner alleged his attorneys “induced” him to plead

guilty to Counts 3 and 4 by misrepresenting he had no credible defense, and

refusing to call certain witnesses to testify on his behalf because of a conflict of

interest. The district court denied W eidner’s motion, concluding W eidner failed

to demonstrate his counsel’s performance was constitutionally deficient. See

Strickland v. Washington, 466 U.S. 668, 688 (1984). The district court

thoroughly evaluated W eidner’s claims by reviewing the entire record, including

the transcript of the plea colloquy and an affidavit submitted by one of W eidner’s

attorneys.




      1
       W iedner was convicted after a jury trial on the five other counts charged in
the superseding indictment and sentenced to concurrent terms of seventy-eight
months’ incarceration on all seven counts. On appeal, the convictions were
affirmed but his sentence was vacated. United States v. Weidner, 437 F.3d 1023,
1050 (10th Cir. 2006). W eidner w as resentenced on April 24, 2006 to sixty
months’ imprisonment on each count, to be served concurrently.

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      To be entitled to a COA, W eidner 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, 322 U.S. 322, 336 (2003) (quotations

omitted). In evaluating whether W eidner 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 W eidner 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.

      In his application for a COA and appellate brief, W eidner asserts the

district court erred when it denied his ineffective assistance claims without

holding an evidentiary hearing. The district court need not conduct an evidentiary

hearing, however, if “the [§ 2255] motion and the files and records of the case

conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255.

Having undertaken a review of W eidner’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 the

district court’s resolution of W eidner’s § 2255 motion is not reasonably subject to

                                          -3-
debate and the issues he seeks to raise on appeal are not adequate to deserve

further proceedings. Accordingly, this court denies W eidner’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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