FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  August 28, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                  TENTH CIRCUIT



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,
                                                        No. 09-4074
                                                         (D. Utah)
v.
                                            (D.C. Nos. 2:07-CV-00869-DAK and
                                                  2:03-CR-00658-DAK-1)
WADE ROSS WADLEY,

                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. 

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, 

, 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. 

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.” 

a review of Wadley’s application for a COA and

appellate filings, the district court’s order, and the entire record on appeal

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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




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