## F I L E D United States Court of Appeals Tenth Circuit 

### August 17, 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BEN EZRA LYONS, Petitioner-Appellant,

v. MARTY SIRMONS, Warden, Dick Conner Correctional Center; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA, Respondents-Appellees. No. 04-6369 (W.D. Oklahoma) (D.Ct. No. CV-04-632-C)

ORDER DENYING CERTIFICATE OF APPEALABILITY

AND DISMISSING APPEAL

Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Ben Ezra Lyons, proceeding pro se, moves for a Certificate of Appealability ("COA") pursuant to 28 U.S.C. § 2253( c) in order to challenge the1 This appeal was partially remanded to the district court for a ruling on Lyons’

timely motion for an extension of time in which to file his notice of appeal under Fed. R. App. 4(a)(5). In an order dated December 16, 2004, the district court granted Lyons’ motion for an extension of time.

2Lyons’ co-defendant was sentenced to twelve years imprisonment with seven years suspended sentence. -2- district court's denial of his 28 U.S.C. § 2254 pet ition for habeas relief. 1 On June 30, 2003, Lyons pled guilty to robbery witha dangerous weapon and was sentenced to fifteen years imprisonment. H e did not appeal his conviction. Instead, in a motion for post-convicti on relief filed in Oklahoma district court, he alleged his attorney failed to a dvise him he had a meritorious appeal based on an allegedly disparate sentence fro m that imposed on his codefendant. 2His petition claiming ineffective assistance of c ounsel was denied on March 31, 2004. The Oklahoma Criminal Court of App eals affirmed the denial of his petition for post-conviction relief on May 10, 2004. Lyons filed a Petition for a Writ of Habeas Corpus in the District Court for the Western District of Oklahoma on May 20, 2004. In his federal § 2254 petition, Lyons raises the same allegations contain ed in his petition for postconviction relief. The matter was referred to a ma gistrate judge who issued a thorough report and a recommendation to deny Lyons’ petition. The magistrate reasoned, inter alia , that Lyons received the precise period of impriso nment negotiated in exchange for his guilty plea. He als o noted the government-3-

dismissed a second count for being a felon in posse ssion of a firearm; a crime which carried a range of one to ten years imprisonm ent. His co-defendant was not charged with a second violation. Therefore, Ly ons failed to show either his counsel’s performance was deficient or a reasonable probability that, even had he appealed, a different outcome would have resulted. Strickland v. Washington, 466 U.S. 668, 688 (1984). The district court adopt ed the magistrate’s report and recommendation in its entirety and denied Lyons’ pe tition on September 17, 2004. Lyons then requested a certificate of appealability(COA) pursuant to 28 U.S.C. § 2253(c)(requiring a state petitioner to ac quire a COA as a condition to appeal) and permission to proceed in forma pauperis ( ifp ) pursuant to 28 U.S.C. § 1915(b). The district court denied both requests. We now consider his renewed request for a COA and to proceed ifp

. "A certificate of appealability may issue . . . onl y if the applicant has made a substantial showing of the denial of a constituti onal right." 28 U.S.C. § 2253(c)(2). "Where a district court has rejected the constitutional claims on the merits," the prisoner "must demonstrate that reason able jurists would find the district court's assessment of the constitutional c laims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). We recognize that in de termining whether to issue a COA, a "full consideration of th e factual or legal bases adduced in support of the claims" is not required. Miller-El v. Cockrell, 537 U.S.-4-

322, 336 (2003). Instead, the decision must be bas ed on "an overview of the claims in the habeas petition and a general assessm ent of their merits." Id. We conclude that Lyons’ ineffective assistance of c ounsel claim must fail for the same reasons set forth by the magistrate ju dge and adopted by the district court. No reasonable jurist would debate whether h is § 2254 petition should have been granted. With regard to Lyons’ request to pro ceed ifp , we conclude the district court correctly determined that Lyons fail ed to show the existence of a reasoned, nonfrivolous argument on the law and fact s in support of the issues he raises on appeal. Accordingly, we DENY his petition for a COA and his motion for leave to file in forma pauperis and DISMISS his appeal. Lyons shall remit the full amount of the filing fee within twenty (20 ) days of this order. Entered by the Court: Terrence L. O’Brien United States Circuit Judge