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

### November 30, 2005

Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. No. 05-2126 MARVIN JOHN COBB, Defendant-Appellant. (D.C. Nos. CV-04-1026 WPJ/ACT and CR-03-244 WPJ) (D.N.M.)

ORDER

Before BRISCOE, LUCERO, and MURPHY , Circuit Judges.
Marvin John Cobb, a federal prisoner proceeding pro se, requests a certificate of appealability (“COA”) so that he may appeal the district court’s denial of his habeas petition that he filed pursuan t to 28 U.S.C. § 2255. Cobb, who has a prior state felony conviction, pled guilty to possession with intent to distribute marijuana in violation of 21 U.S.C. § 841, and was sentenced to the statutory minimum sentence of sixty months’ incarceration. Cobb did not appeal his conviction or sentence. On September 10, 2004, Cobb filed a § 2255 petition , claiming ineffective assistance of counsel and involuntary guilty plea. The district court referred the matter to a magistrate judge, who recommended that Cobb’s petition bedismissed. The district court adopted the magistrate judge’s report and

recommendation, overruled Cobb’s timely objections, and denied Cobb’s request for habeas relief. Cobb requested a COA as to his claims of ineffective assistance of counsel and involuntary guilty plea. On April 2 8, 2005, the district court declined to grant a COA, but granted Cobb’s motion to proceed in forma pauperis. Unless the petitioner first obtains a COA, no appea l may be taken from a final order disposing of a § 2255 petition. See 28 U.S.C. § 2253(c)(1)(B). A COA may issue “only if the applicant has made a sub stantial showing of the denial of a constitutional right.” 28 U.S.C. § 225 3(2)(c). In determining whether Cobb has satisfied this burden, this court undertak es “a preliminary, though not definitive, consideration of the [legal] framework” applicable to each of his claims.” Miller-El v. Cockrell , 537 U.S. 322, 338 (2003). To be entitled to a COA, Cobb need not establish that his appeal will s ucceed. Instead, he must “prove something more than the absence of frivolityor the existence of mere good faith.” Id. (internal quotations omitted). Based upon our review of the record on appeal, we c onclude that Cobb is not entitled to a COA because no reasonable jurist would disagree with the district court’s resolution of the issues in Cobb’s habeas petition. 1. Ineffective Assistance of Counsel Cobb, who is a Vietnam veteran allegedly suffering from post-traumatic stress disorder, claims that his counsel was ineffe ctive for failing to argue that his mental condition was a mitigating factor that shoul d reduce his sentence. Theonly support in the record for Cobb’s claim, howeve r, are Cobb’s own statements

during his sentencing hearing that he “suffered fro m panic attacks about a week and half to two weeks prior . . . .” Notably, the district court rejected Cobb’s statements in this regard. Aside from his statemen ts at sentencing, Cobb has not offered any evidence to show that he suffered from diminished capacity at the time of his offense. Cobb additionally maintains that his counsel was de ficient for failing to move for a downward departure. The magistrate judg e, however, found that Cobb’s counsel was concerned about invalidating the plea agreement by filing a motion for a downward departure. Further, pursuantto the terms of the plea agreement, Cobb agreed that he would not seek a dow nward departure. The district court held that Cobb failed to demonst rate that his attorney’s conduct was deficient pursuant to Strickland v. Was hington , 466 U.S. 668, 687 (1984). The district court also held that Cobb fai led to show that his counsel’s performance prejudiced his defense. As to his argu ments regarding diminished capacity and a downward departure motion, Cobb coul d not establish prejudice because the judge sentenced him to the statutory mi nimum of sixty months. No reasonable jurist could conclude that Cobb made a substantial showing of a violation of his constitutional rights in his ineffectiveness claims. 2. Involuntary Guilty Plea Cobb asserts that his guilty plea was involuntary b ecause he conferred with his attorney for only twenty minutes about the agre ement, and because he did notread the agreement.

The district court held that Cobb’s plea was consti tutionally valid because it was voluntary and intelligently given. See Bousley v. United States , 523 U.S. 614, 618 (1998). The record does not support Cobb’ s allegation that his guilty plea was involuntary. At the plea hearing, Cobb ac knowledged that he understood and signed the plea agreement. The pleaagreement stated that, in signing it, Cobb represented that his guilty plea w as “freely and voluntarily made and not the result of force or threats or promises apart from those set forth in the plea agreement.” Plea Agreement, at 6. No reasonable jurist could disagree with the distri ct court’s resolution of Cobb’s claim regarding the voluntariness of his gui lty plea. Cobb’s request for a COA is DENIED, and this matteris DISMISSED.

Entered for the Court
Mary Beck Briscoe Circuit Judge