United States v. Chancey , 55 F. App'x 507 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 24 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 02-6098
D.C. No. CIV-01-1455-T
v. and CR-98-166-T
(Western District of Oklahoma)
TERRY CHANCEY,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
This case is before the court on Terry Chancey’s pro se requests for a
certificate of appealability (“COA”) and for permission to proceed on appeal in
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
forma pauperis. Chancey seeks a COA so that he can appeal the district court’s
denial of his 28 U.S.C. § 2255 motion. See 28 U.S.C. § 2253(c)(1)(B) (providing
that no appeal may be taken from “the final order in a proceeding under section
2255” unless the movant obtains a COA). Chancey’s request to proceed on
appeal in forma pauperis is granted. Because Chancey has not “made a
substantial showing of the denial of a constitutional right,” however, this court
denies his request for a COA and dismisses this appeal.
In his § 2255 motion, Chancey raised four general challenges to his
conviction and resultant sentence for distribution of methamphetamine in
violation of 21 U.S.C. § 841(a). He further alleged that his counsel was
constitutionally ineffective as cause and prejudice sufficient to overcome the
procedural bar arising from his failure to raise these claims on direct appeal. See
United States v. Frady, 456 U.S. 152, 167-68 (1982); Rogers v. United States, 91
F.3d 1388, 1391 (10th Cir. 1996). In response, the district court reviewed and
rejected each of Chancey’s claims on the merits. Because all of the claims that
Chancey asserted his counsel should have raised were without merit, the district
court concluded Chancey had failed to demonstrate that his counsel was
ineffective. As Chancey had failed to show a basis for relief, the district court
denied his § 2255 motion.
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To be entitled to a COA, Chancey must make a “substantial showing of the
denial of a constitutional right.” See id. § 2253(c)(2). He can make the requisite
showing by demonstrating 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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Upon
consideration of Chancey’s application for a COA and appellate brief, and de
novo review of the district court’s order and entire record on appeal, this court
concludes that Chancey has not made a substantial showing of the denial of a
constitutional right for substantially those reasons set out in the district court’s
order dated February 13, 2002. Accordingly, this court GRANTS Chancey
permission to proceed in forma pauperis, DENIES his application for a COA, and
DISMISSES this appeal.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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