*

This order is not binding precedent except under the doctrines of law of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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

January 15, 2009

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 08-5143

v. (N.D. Oklahoma)

JOHNNY RAY BASHAM,

Defendant - Appellant.

(D.C. No. CV-03-00141-TCK and 

CR-00-00107-TCK)

ORDER DENYING

CERTIFICATE OF APPEALABILITY*

Before LUCERO, ANDERSON, and TYMKOVICH, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this proceeding. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case

is therefore ordered submitted without oral argument.

Johnny Ray Basham was found guilty, following a jury trial, of possession

with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1)
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and (b)(1)(C); possession of a firearm in furtherance of a drug trafficking crime,

in violation of 18 U.S.C. § 924(c); and possession of a firearm after former

conviction of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). He

was sentenced to a total term of 324 months’ imprisonment. Basham timely

appealed his conviction and sentence.

After Basham’s notice of appeal and opening brief on appeal were filed, his

counsel, Paul Brunton, left private practice and became the Federal Public

Defender for the Northern and Eastern Districts of Oklahoma. Attorney R.

Thomas Seymour entered his appearance in the Tenth Circuit and represented

Basham at oral argument. This court affirmed Basham’s conviction and sentence. 

United States v. Basham, 268 F.3d 1199 (10th Cir. 2001). The United States

Supreme Court denied Basham’s petition for a writ of certiorari. Basham v.

United States, 535 U.S. 945 (2002).

On February 26, 2005, Basham filed the instant 28 U.S.C. § 2255 motion,

alleging that he received ineffective assistance of counsel in various ways. The

district court first held that it was not necessary to hold an evidentiary hearing,

concluding that “the motion and files and records of the case conclusively show

that the [movant] is entitled to no relief.” Op. & Order at 3, R. Vol. 1 (quoting 28

U.S.C. § 2255(b)). The court then determined that Basham’s § 2255 claims

lacked merit, concluding, after examining each of his claims in detail, as follows:
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In summary, the Court finds Basham has failed to satisfy the

Strickland standard as to the assistance provided by his attorney at

trial and on appeal. Basham’s attorney did not perform deficiently at

trial or on direct appeal because the underlying claims lack merit. 

Furthermore, nothing alleged by Basham convinces the Court that

there is a reasonable probability that the outcome of the proceedings

would have been different without the incidents of alleged deficient

performance by counsel. Basham is not entitled to § 2255 relief on

his ineffective assistance of trial and appellate counsel claims.

Id. at 10 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). The

district court subsequently denied Basham a certificate of appealability (“COA”). 

This pro se appeal followed.

Basham has filed a motion for a COA as well as a pro se appellate brief. 

We, therefore, must first address whether to grant Basham a COA to enable him

to appeal the district court’s denial of his § 2255 motion.

In order to obtain a COA, an appellant must make a “substantial showing of

the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), such that “reasonable

jurists would find the district court’s assessment of the constitutional claims

debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003). In

addressing this question, we review Basham’s pro se filings with special

solicitude. See Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007). 

Even according Basham’s materials such a solicitous construction, we conclude,

based upon our own review of the record in this case, and for substantially the

same reasons given by the district court, that no reasonable jurist could debate the
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correctness of the district court’s ruling. Basham’s request for a COA is therefore

denied and this appeal is dismissed.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge