FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                   UNITED STATES COURT OF APPEALS October 22, 2010

                               TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                 Clerk of Court


 UNITED STATES OF AMERICA,

             Plaintiff-Appellee,
                                                       No. 10-3079
 v.                                          (D.C. Nos. 5:09-CV-04161-MLB;
                                                 5:06-CR-40011-MLB-2)
 JOHNNIE FRANKLIN-EL,                                    (D. Kan.)

             Defendant-Appellant.



 UNITED STATES OF AMERICA,

             Plaintiff-Appellee,
                                                       No. 10-3084
 v.                                          (D.C. Nos. 5:10-CV-04001-MLB;
                                                 5:06-CR-40011-MLB-1)
 PEGGY FRANKLIN-EL,                                      (D. Kan.)

             Defendant-Appellant.


          ORDER DENYING CERTIFICATES OF APPEALABILITY *


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.

      *
              This Order is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however,
for its persuasive value consistent with Federal Rule of Appellate Procedure 32.1
and Tenth Circuit Rule 32.1.

      After examining the briefs and the appellate record, this three-judge panel
determined unanimously that oral argument would not be of material assistance in
the determination of this matter. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
      Johnnie and Peggy Franklin-El, federal prisoners proceeding pro se, 1 each

seek a certificate of appealability (“COA”) to challenge the district court’s

dismissal of their motions to vacate, set aside, or correct their sentences pursuant

to 28 U.S.C. § 2255. Mr. Franklin-El also moves for leave to proceed in forma

pauperis on appeal. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a),

we deny Mr. and Ms. Franklin-El’s applications for COAs and dismiss their

appeals because neither party makes a substantial showing of the denial of a

constitutional right. We also deny Mr. Franklin-El’s motion to proceed in forma

pauperis.

                                 BACKGROUND

      Mr. Franklin-El was convicted of seventeen counts of health care fraud and

one count of obstruction of justice. See R:10-3079, Vol. I, at 68 (J. Crim. Case,

filed Aug. 21, 2007). Ms. Franklin-El was convicted of 52 counts of health care

fraud and one count of obstruction of justice. See R:10-3084, Vol. I, at 69 (J.

Crim. Case, filed Aug. 21, 2007).

      On direct appeal, this court affirmed Mr. Franklin-El’s health care fraud

convictions, but reversed his conviction for obstruction of justice. United States



      1
              Because Mr. and Ms. Franklin-El are proceeding pro se, we construe
their filings liberally. See, e.g., Garza v. Davis, 

, 1201 n.2 (10th
Cir. 2010).

                                         -2-
v. Franklin-El, 

(10th Cir. 2009). We affirmed all of Ms. Franklin-

El’s convictions. United States v. Franklin-El, 

(10th Cir. 2009),

cert. denied, 

(2009).

      The Franklin-Els filed motions to vacate, set aside, or correct their

sentences pursuant to 28 U.S.C. § 2255 in the United States District Court for the

District of Kansas. The district court dismissed the Franklin-Els’ habeas

petitions, holding that “[t]he files and records clearly demonstrate that defendants

are entitled to no relief.” R:10-3079, Vol. I, at 99 (Dist. Ct. Order, filed Mar. 16,

2010); R:10-3084, Vol. I, at 100 (same).

                                   DISCUSSION

      A COA is a jurisdictional prerequisite to this court’s review of a habeas

corpus petition. See 28 U.S.C. § 2253(c); Allen v. Zavaras, 

, 1199

(10th Cir. 2009) (citing Miller-El v. Cockrell, 

, 336 (2003)). “We

will issue a COA ‘only if the applicant has made a substantial showing of the

denial of a constitutional right.’” 

(quoting 28 U.S.C.

§ 2253(c)(2)). To make such a showing, an applicant must demonstrate “that

reasonable jurists could debate whether . . . the petition should have been

resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” 

v. McDaniel, 

, 484 (2000)) (internal quotation marks omitted).

      In determining whether to grant a COA, we need not engage in a “full

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consideration of the factual or legal bases adduced in support of the claims,”

; instead, we undertake “a preliminary, though not

definitive, consideration of the [legal] framework” applicable to each claim, 

Although an applicant need not demonstrate that his appeal will succeed, he

“must prove ‘something more than the absence of frivolity’ or the existence of

mere ‘good faith’” to obtain a COA. 

(quoting Barefoot v. Estelle, 

, 893 (1983)).

      Where a “COA application rests on claims of ineffective assistance of

counsel, in order to determine if [a movant] can make a substantial showing of the

denial of a constitutional right we must undertake a preliminary analysis . . . in

light of the two-part test for ineffective assistance” articulated in Strickland v.

Washington, 

(1984). United States v. Harris, 368 F. App’x 866,

868 (10th Cir. 2010), cert. dismissed, No. 10-5205, 

(Sept.

22, 2010). “Under Strickland, [a movant] must show that counsel’s performance

fell below an objective standard of reasonableness as measured against prevailing

professional norms, and he must show that there is a reasonable probability that

the outcome would have been different but for counsel’s inadequate

performance.” Sandoval v. Ulibarri, 

, 909 (10th Cir. 2008) (citing

, 694), cert. denied, 

(2009).

      Mr. and Ms. Franklin-El seek COAs on their claims that their trial counsel

was ineffective for failing to object to the district court’s allegedly erroneous

                                          -4-
calculation of their offense levels. In addition, Mr. Franklin-El claims that his

obstruction of justice sentencing enhancement should have been removed after

this court reversed his conviction for obstruction of justice on direct appeal, and

Ms. Franklin-El asserts an ineffective assistance of counsel claim based on

religious discrimination.

I. Erroneous Offense Level Calculation Claims

      Mr. and Ms. Franklin-El each assert ineffective assistance of counsel

claims for trial counsel’s failure to object to the district court’s allegedly

erroneous calculation of their offense levels. Mr. and Ms. Franklin-El each claim

that the district court included sentencing enhancements for vulnerable victim,

pursuant to U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 3A1.1, and abuse

of a position of trust, pursuant to U.S.S.G. § 3B1.3, despite ruling that it would

not do so. The Franklin-Els are mistaken: the district court did not include these

sentencing enhancements in calculating their total offense levels.

      Mr. and Ms. Franklin-El’s Presentence Investigation Reports (“PSRs”) each

included sentencing enhancements for vulnerable victim and abuse of a position

of trust. See R:10-3079, Vol. II, at 30 (PSR, rev. Aug. 1, 2007); R:10-3084, Vol.

II, at 32 (PSR, rev. Aug. 1, 2007). However, the district court sustained the

Franklin-Els’ objections to the two-point enhancements for vulnerable victim and

abuse of position of trust, reducing their respective total offense levels by four.

See Sentencing Tr., dated Aug. 10, 2007, at 41–43. But, the district court also

                                          -5-
increased their respective specific offense characteristic enhancement from twelve

to sixteen offense levels, pursuant to U.S.S.G. § 2B1.1(b)(1) (providing

enhancements based upon the amount of loss). See 

43. Thus, the

district court’s rulings offset each other and did not change the Franklin-Els’ total

offense levels. In arguing that the district court erroneously included sentencing

enhancements for vulnerable victim and abuse of a position of trust, the Franklin-

Els apparently overlook the fact that the district court increased their specific

offense characteristic by four offense levels. Thus, the Franklin-Els cannot

establish that their counsel’s performance was constitutionally ineffective because

counsel failed to object to the district court’s calculation of their offense levels

related to the vulnerable victim and abuse of a position of trust enhancements.

II. Mr. Franklin-El’s Obstruction of Justice Enhancement Claim

      Mr. Franklin-El also asserts a claim based on the district court’s imposition

of a two-level enhancement for obstruction of justice, pursuant to U.S.S.G.

§ 3C1.1. As discussed above, Mr. Franklin-El argues that his trial counsel was

ineffective for failing to object to the district court’s allegedly erroneous offense-

level calculation, including the obstruction of justice enhancement. Mr. Franklin-

El further argues that his obstruction of justice sentencing enhancement should

have been removed after this court reversed his conviction for obstruction of

justice on direct appeal. Mr. Franklin-El did not raise his ineffective assistance of

counsel argument based on the obstruction of justice enhancement before the

                                          -6-
district court and it is therefore waived. See Parker v. Scott, 

, 1307

(10th Cir. 2005) (concluding that a habeas petitioner waives claims not raised

before the district court).

III. Ms. Franklin-El’s Religious Discrimination Claim

      Ms. Franklin-El also asserts an ineffective assistance of counsel claim

based on religious discrimination. This argument was not presented to the district

court and is therefore waived. See 

Franklin-El’s Motion for Leave to Proceed In Forma Pauperis

      To obtain in forma pauperis status, a petitioner must show “a financial

inability to pay the required fees” and “a reasoned, nonfrivolous argument on the

law and facts in support of the issues raised on appeal.” McIntosh v. U.S. Parole

Comm’n, 

, 812 (10th Cir. 1997) (quoting DeBardeleben v. Quinlan,

, 505 (10th Cir. 1991)) (internal quotation marks omitted). We deny

Mr. Franklin-El’s motion for leave to proceed in forma pauperis because he has

failed to present a reasoned, nonfrivolous argument in support of the issues raised

on appeal.

                                 CONCLUSION

      For the foregoing reasons, we DENY the Franklin-Els’ applications for

COAs and DISMISS their appeals. We also DENY Mr. Franklin-El’s motion for

leave to proceed in forma pauperis because his appeal does not present a

reasoned, nonfrivolous argument.

                                         -7-
      ENTERED FOR THE COURT


      Jerome A. Holmes
      Circuit Judge




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