United States vs. Weidner, No. 06-3049 (10th Cir. 2006)
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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, v. CLINTON ODELL W EIDNER, II, No. 06-3049 (District of K ansas) (D.C. Nos. 04-CV-3123-JAR and 02-CR-40140-JAR) 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 sevencount 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. -2- 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 -4-
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