FILED

United States Court of Appeals

Tenth Circuit

May 16, 2013

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DEMONTE HOWARD EMBRY,

Defendant - Appellant.

No. 12-5209

(D.C. Nos. 4:12-CV-00123-CVE-PJC

and 4:10-CR-00056-CVE-1)

(N.D. Okla.)

ORDER DENYING CERTIFICATE

OF APPEALABILITY

Before LUCERO, McKAY, and MURPHY, Circuit Judges. 

Proceeding pro se, Demonte Howard Embry seeks to appeal the district

court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his

sentence. The matter is before this court on Embry’s request for a certificate of

appealability (“COA”). 28 U.S.C. § 2253(c)(1)(B) (providing no appeal may be

taken from a “final order in a proceeding under section 2255” unless the movant

first obtains a COA). Because Embry has not “made a substantial showing of the

denial of a constitutional right,” this court denies his request for a COA and

dismisses this appeal. Id. § 2253(c)(2).

A federal jury found Embry guilty of being a felon in possession of a

firearm. United States v. Embry, 452 F. App’x 826 (10th Cir. 2011). On direct
appeal, this court resolved Embry’s challenges to the denial of his post-trial

discovery motion and the partial grant of a motion in limine filed by the

government before trial. Id. at 830. Embry thereafter filed the instant § 2255

motion, raising six claims of ineffective assistance of counsel. Specifically, he

asserted counsel was ineffective for failing to exercise peremptory challenges to

avoid an all-white jury, failing to call two citizen witnesses and one of the

arresting officers, failing to file a motion for acquittal, failing to file a motion for

continuance so additional witnesses could be located, and conducting inadequate

discovery before trial. The district court addressed each of the claims by

applying the two-part test set out in Strickland v. Washington, 466 U.S. 668, 688-

89 (1984). The court concluded Embry was not entitled to relief on any claim

because he was unable to demonstrate, inter alia, that his counsel’s performance

was deficient.1

 

To be entitled to a COA, Embry 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,

1

The district court also concluded Embry failed to show he was prejudiced

by counsel’s actions. We need not address Strickland’s prejudice prong because

reasonable jurists could not debate the correctness of the district court’s

performance-prong analysis. See Cooks v. Ward, 165 F.3d 1283, 1292-93 (10th

Cir. 1998) (holding a court may address Strickland’s performance and prejudice

prongs “in any order, but need not address both if [movant] fails to make a

sufficient showing of one”). 

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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, 537 U.S. 322, 336 (2003) (quotations

omitted). In evaluating whether Embry has satisfied his burden, this court

undertakes “a preliminary, though not definitive, consideration of the [legal]

framework” applicable to each of his claims. Id. at 338. Although Embry 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.” 

Id.

Having undertaken a review of Embry’s application for a COA and

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

pursuant to the framework set out by the Supreme Court in Miller-El, this court

concludes Embry is not entitled to a COA on any of his claims. The district

court’s resolution of Embry’s claims is not reasonably subject to debate and the

issues he seeks to raise on appeal relating to those claims are not adequate to

deserve further proceedings.

Embry’s application for a COA is denied and his appeal is dismissed. 

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge

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