FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                September 5, 2013
                   UNITED STATES COURT OF APPEALS
                                                              Elisabeth A. Shumaker
                                TENTH CIRCUIT                     Clerk of Court



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                     No. 13-2095
       v.                                            (D. New Mexico)
 EDWARD BUSSIE,                            (D.C. Nos. 1:12-CV-00874-JCH-LAM
                                                and 1:10-CR-03100-JCH-1)
              Defendant - Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.


      Defendant Edward Bussie filed a motion for relief under 28 U.S.C. § 2255

in the United States District Court for the District of New Mexico. The district

court denied the motion. Defendant now seeks a certificate of appealability

(COA) from this court so that he may appeal the district court’s decision. See 28

U.S.C. § 2253(c)(1)(B) (requiring a COA to appeal denial of § 2255 relief). We

deny a COA and dismiss the appeal.

      On July 15, 2011, Defendant pleaded guilty to carrying and using a firearm

in relation to a drug trafficking crime. See 18 U.S.C. § 924(c)(1)(A)(i). He was

sentenced to 60 months’ imprisonment. On August 13, 2012, Defendant filed his

§ 2255 motion, arguing (1) prosecutorial misconduct during the plea bargain, and
(2) ineffective assistance of counsel. As ordered by the district court, the

government filed a response on September 27.

      On December 7, 2012, Defendant filed a motion for default judgment,

claiming that he had never received a copy of the response. The district court

denied the motion for default judgment because the docket showed that the

government had filed a timely response. It also ordered that Defendant show

cause why his case should not be dismissed because he had not notified the court

of his current address. The magistrate judge recommended that Defendant’s §

2255 motion be denied because (1) in his plea agreement he had knowingly and

voluntarily waived the right to collaterally attack his sentence, and (2) defense

counsel’s performance was not deficient with respect to the plea agreement. The

district court adopted the magistrate judge’s recommendation. It rejected

Defendant’s argument that the § 2255 motion was not fully briefed because he did

not receive a copy of the government’s response when it was filed. The court

observed that Defendant had not explained how he was prejudiced by the late

receipt, and in any event, he admittedly received the response in early December,

leaving him with several months to file a reply (which he never did).

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

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard

requires “a demonstration that . . . includes showing that reasonable jurists could

debate whether (or, for that matter, agree that) the petition should have been

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

deserve encouragement to proceed further.” Slack v. McDaniel, 

,

484 (2000) (internal quotation marks omitted). In other words, the applicant must

show that the district court’s resolution of the constitutional claim was either

“debatable or wrong.” 

for a COA, Defendant does not challenge the merits of the

district court’s dismissal. Instead, he argues that the court abused its discretion

by (1) denying his motion for default judgment and dismissing his claims even

though the government did not serve him with its response until December 7, and

(2) ordering him to show cause why his case should not be dismissed because of

his failure to update his mailing address. He also appears to complain that his

reply brief in support of his motion for default judgment was not properly

processed or considered by the court, but the order denying the motion explicitly

mentions the reply brief.

      Reasonable jurists would not debate the district court’s resolution of

Defendant’s claims. Even if the government served the response late, Defendant

was not prejudiced because he still had about three months to file a reply before

the magistrate judge issued her recommendation of dismissal. And the court

ultimately did not dismiss Defendant’s claims for failure to update his mailing

address.




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     We DENY Defendant’s application for a COA and DISMISS the appeal.

We DENY Defendant’s motion to proceed in forma pauperis.

                                   ENTERED FOR THE COURT


                                   Harris L Hartz
                                   Circuit Judge




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