United States v. Wadley, No. 09-4074 (10th Cir. 2009)
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FILED United States Court of Appeals Tenth Circuit August 28, 2009 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WADE ROSS WADLEY, No. 09-4074 (D. Utah) (D.C. Nos. 2:07-CV-00869-DAK and 2:03-CR-00658-DAK-1) Defendant - Appellant. ORDER DENYING CERTIFICATE OF APPEALABILITY Before LUCERO, McKAY, and MURPHY, Circuit Judges. Petitioner, Wade Ross Wadley, seeks a certificate of appealability ( COA ) from this court 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 a movant may not appeal the denial of a § 2255 motion unless he first obtains a COA). Wadley pleaded guilty to nine counts of Hobbs Act robbery and two firearm charges. Wadley then filed a direct appeal challenging the 140-month sentence imposed by the district court. United States v. Wadley, 191 F. App x 799, 800 (10th Cir. 2006). The sentence was affirmed. Id. Wadley filed the instant § 2255 motion on November 9, 2007. In the motion he raised (1) several challenges to the jurisdiction of the trial court, (2) a claim the application of the Hobbs Act to his offenses was unconstitutional, (3) a double jeopardy argument, and (4) allegations of ineffective assistance of counsel. The district court denied Wadley s § 2255 motion, concluding all the claims lacked merit. In his appellate brief, Wadley challenges the disposition of the jurisdictional issues and the Hobbs Act claim. To be entitled to a COA, Wadley 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 proceed further. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations omitted). In evaluating whether Wadley 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 Wadley 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 Wadley s application for a COA and appellate filings, the district court s order, and the entire record on appeal -2- 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 Wadley 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 Wadley s request for a COA and dismisses this appeal. Wadley s motion to proceed in forma pauperis on appeal is granted. ENTERED FOR THE COURT Michael R. Murphy Circuit Judge -3-
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