                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                January 19, 2011
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT



UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
                                                        No. 10-4132
                                                          (D. Utah)
       v.
                                            (D.C. Nos. 1:08-CV-00044-DAK and
                                                  1:03-CR-00139-DAK-1)
JAMES DURAN,

             Defendant - Appellant.


                         ORDER DENYING CERTIFICATE
                             OF APPEALABILITY


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.


      This matter is before the court on James Duran’s pro se request for a

certificate of appealability (“COA”). Duran seeks a COA so he can appeal the

district court’s denial of his 28 U.S.C. § 2255 motion. 28 U.S.C. § 2253(c)(1)(B).

Because Duran has not “made a substantial showing of the denial of a

constitutional right,” id. § 2253(c)(2), this court denies his request for a COA and

dismisses this appeal.

      Following a jury trial, Duran was convicted of multiple counts of violating

federal drug and firearm prohibitions. United States v. Duran, 213 Fed. App’x

764, 765 (10th Cir. 2007). This court affirmed Duran’s convictions on appeal,

concluding that neither the issues raised by counsel nor the issues raised by Duran
in a pro se brief had any merit. Id. at 767-68. Duran thereafter filed the instant

§ 2255 motion, raising numerous issues, many of which had multiple sub-issues.

After carefully parsing Duran’s voluminous and often opaque filings, the district

court denied Duran’s § 2255 motion on the merits.

      The granting of a COA is a jurisdictional prerequisite to Duran’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, Duran 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.” Id. (quotations omitted). In evaluating whether Duran 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 Duran 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 Duran’s appellate filings, the district court’s

order, and the entire record before this court pursuant to the framework set out by

the Supreme Court in Miller-El, we conclude Duran is not entitled to a COA. The

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

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

further proceedings. Accordingly, this court DENIES Duran’s request for a COA

and DISMISSES this appeal.

                                               ENTERED FOR THE COURT


                                               Michael R. Murphy
                                               Circuit Judge




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