#### UNITED STATES of America, Plaintiff-Appellee, v. Johnnie FRANKLIN-EL, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Peggy Franklin-El, Defendant-Appellant.

Nos. 10-3079, 10-3084.

United States Court of Appeals, Tenth Circuit.

Oct. 22, 2010.

James A. Brown, Tanya J. Treadway, Office of the United States Attorney, Topeka, KS, for Plaintiff-Appellee.

Johnnie Franklin-El, Forrest City, AR, pro se.

Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.

ORDER DENYING CERTIFICATES OF APPEALABILITY*

JEROME A. HOLMES, Circuit Judge.

Johnnie and Peggy Franklin-El, federal *428prisoners proceeding pro se,1 each seek a certificate of appealability (“COA”) to challenge the district court’s dismissal of their motions to vacate, set aside, or correct their sentences pursuant to 28 U.S.C. § 2255. Mr. Franklin-El also moves for leave to proceed *in forma pauperis*on appeal. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we deny Mr. and Ms. Franklin-El’s applications for COAs and dismiss their appeals because neither party makes a substantial showing of the denial of a constitutional right. We also deny Mr. Franklin-El’s motion to proceed *informa pauperis.*

BACKGROUND

Mr. Franklin-El was convicted of seventeen counts of health care fraud and one count of obstruction of justice. *See*R:10-3079, Vol. I, at 68 (J.Crim. Case, filed Aug. 21, 2007). Ms. Franklin-El was convicted of 52 counts of health care fraud and one count of obstruction of justice. *See*R:10-3084, Vol. I, at 69 (J.Crim. Case, filed Aug. 21, 2007).

On direct appeal, this court affirmed Mr. Franklin-El’s health care fraud convictions, but reversed his conviction for obstruction of justice. *United States v. Franklin-El,*555 F.3d 1115 (10th Cir.2009). We affirmed all of Ms. Franklin-El’s convictions. *United States v. Franklin-El,*554 F.3d 903 (10th Cir.2009), *cert. denied,*— U.S.-, 129 S.Ct. 2813, 174 L.Ed.2d 307 (2009).

The Franklin-Els filed motions to vacate, set aside, or correct their sentences pursuant to 28 U.S.C. § 2255 in the United States District Court for the District of Kansas. The district court dismissed the Franklin-Els’ habeas petitions, holding that “[t]he files and records clearly demonstrate that defendants are entitled to no relief.” R:10-3079, Vol. I, at 99 (Dist. Ct. Order, filed Mar. 16, 2010); R:10-3084, Vol. I, at 100 (same).

DISCUSSION

A COA is a jurisdictional prerequisite to this court’s review of a habeas corpus petition. *See*28 U.S.C. § 2253(c); *Allen v. Zavaras,*568 F.3d 1197, 1199 (10th Cir.2009) (citing *Miller-El v. Cockrell,*537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)). “We will issue a COA ‘only if the applicant has made a substantial showing of the denial of a constitutional right.’ ” *Allen,*568 F.3d at 1199 (quoting 28 U.S.C. § 2253(c)(2)). To make such a showing, an applicant must demonstrate “that reasonable jurists could debate whether ... the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” *Id.*(quoting *Slack v. McDaniel,*529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)) (internal quotation marks omitted).

In determining whether to grant a COA, we need not engage in a “full consideration of the factual or legal bases adduced in support of the claims,” *Miller-El,*537 U.S. at 336, 123 S.Ct. 1029; instead, we undertake “a preliminary, though not definitive, consideration of the [legal] framework” applicable to each claim, *id.*at 338, 123 S.Ct. 1029. Although an applicant need not *429demonstrate that his appeal will succeed, he “must prove ‘something more than the absence of frivolity’ or the existence of mere ‘good faith’ ” to obtain a COA. *Id.*at 338, 123 S.Ct. 1029 (quoting *Barefoot v. Estelle,*463 U.S. 880, 893, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)).

Where a “COA application rests on claims of ineffective assistance of counsel, in order to determine if [a movant] can make a substantial showing of the denial of a constitutional right we must undertake a preliminary analysis ... in light of the two-part test for ineffective assistance” articulated in *Strickland v. Washington,*466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). *United States v. Harris,*368 Fed.Appx. 866, 868 (10th Cir.2010), *cert. dismissed,*— U.S.-, 131 S.Ct. 455, 177 L.Ed.2d 1149 (2010). “Under *Strickland,*[a movant] must show that counsel’s performance fell below an objective standard of reasonableness as measured against prevailing professional norms, and he must show that there is a reasonable probability that the outcome would have been different but for counsel’s inadequate performance.” *Sandoval v. Ulibarri,*548 F.3d 902, 909 (10th Cir.2008) (citing *Strickland,*466 U.S. at 688, 694, 104 S.Ct. 2052), *cert. denied,*— U.S.-, 130 S.Ct. 133, 175 L.Ed.2d 87 (2009).

Mr. and Ms. Franklin-El seek COAs on their claims that their trial counsel was ineffective for failing to object to the district court’s allegedly erroneous calculation of their offense levels. In addition, Mr. Franklin-El claims that his obstruction of justice sentencing enhancement should have been removed after this court reversed his conviction for obstruction of justice on direct appeal, and Ms. Franklin-El asserts an ineffective assistance of counsel claim based on religious discrimination.

I. Erroneous Offense Level Calculation Claims

Mr. and Ms. Franklin-El each assert ineffective assistance of counsel claims for trial counsel’s failure to object to the district court’s allegedly erroneous calculation of their offense levels. Mr. and Ms. Franklin-El each claim that the district court included sentencing enhancements for vulnerable victim, pursuant to U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 3A1.1, and abuse of a position of trust, pursuant to U.S.S.G. § 3B1.3, despite ruling that it would not do so. The FranklinEls are mistaken: the district court did not include these sentencing enhancements in calculating their total offense levels.

Mr. and Ms. Franklin-El’s Presentence Investigation Reports (“PSRs”) each included sentencing enhancements for vulnerable victim and abuse of a position of trust. *See*R:10-3079, Vol. II, at 30 (PSR, rev.Aug.l, 2007); R-.10-3084, Vol. II, at 32 (PSR, rev.Aug.l, 2007). However, the district court sustained the Franklin-Els’ objections to the two-point enhancements for vulnerable victim and abuse of position of trust, reducing their respective total offense levels by four. *See*Sentencing Tr., dated Aug. 10, 2007, at 41-43. But, the district court also increased their respective specific offense characteristic enhancement from twelve to sixteen offense levels, pursuant to U.S.S.G. § 2Bl.l(b)(l) (providing enhancements based upon the amount of loss). *See id.*at 40-41, 43. Thus, the district court’s rulings offset each other and did not change the Franklin-Els’ total offense levels. In arguing that the district court erroneously included sentencing enhancements for vulnerable victim and abuse of a position of trust, the Franklin-Els apparently overlook the fact that the district court increased their specific offense characteristic by four offense levels. Thus, the Franklin-Els cannot establish *430that their counsel’s performance was constitutionally ineffective because counsel failed to object to the district court’s calculation of their offense levels related to the vulnerable victim and abuse of a position of trust enhancements.

II. Mr. Franklin-El’s Obstruction of Justice Enhancement Claim

Mr. Franklin-El also asserts a claim based on the district court’s imposition of a two-level enhancement for obstruction of justice, pursuant to U.S.S.G. § 3C1.1. As discussed above, Mr. Franklin-El argues that his trial counsel was ineffective for failing to object to the district court’s allegedly erroneous offense-level calculation, including the obstruction of justice enhancement. Mr. Franklin-El further argues that his obstruction of justice sentencing *enhancement*should have been removed after this court reversed his *conviction*for obstruction of justice on direct appeal. Mr. Franklin-El did not raise his ineffective assistance of counsel argument based on the obstruction of justice enhancement before the district court and it is therefore waived. *See Parker v. Scott,*394 F.3d 1302, 1307 (10th Cir.2005) (concluding that a habeas petitioner waives claims not raised before the district court).

III. Ms. Franklin-El’s Religious Discrimination Claim

Ms. Franklin-El also asserts an ineffective assistance of counsel claim based on religious discrimination. This argument was not presented to the district court and is therefore waived. *See id.*

IV. Mr. Franklin-El’s Motion for Leave to Proceed *In Forma Pau-peris*

To obtain *in forma pauperis*status, a petitioner must show “a financial inability to pay the required fees” and “a reasoned, nonfrivolous argument on the law and facts in support of the issues raised on appeal.” *McIntosh v. U.S. Parole Comm’n,*115 F.3d 809, 812 (10th Cir.1997) (quoting *DeBardeleben v. Quinlan,*937 F.2d 502, 505 (10th Cir.1991)) (internal quotation marks omitted). We deny Mr. Franklin-El’s motion for leave to proceed *infama pauperis*because he has failed to present a reasoned, nonfrivolous argument in support of the issues raised on appeal.

CONCLUSION

For the foregoing reasons, we DENY the Franklin-Els’ applications for COAs and DISMISS their appeals. We also DENY Mr. Franklin-El’s motion for leave to proceed *in fama pauperis*because his appeal does not present a reasoned, non-frivolous argument.

*

 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 consis*428tent with Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1.

After examining the briefs and the appellate record, this three-judge panel determined unanimously that oral argument would not be of material assistance in the determination of this matter. *See*Fed. R.App. P. 34(a); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

1

. Because Mr. and Ms. Franklin-El are proceeding pro se, we construe their filings liberally. *See, e.g., Garza v. Davis,*596 F.3d 1198, 1201 n. 2 (10th Cir.2010).