* After examining the brief and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

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

therefore ordered submitted without oral argument. This order and judgment 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not binding precedent, except under the doctrines of law of the case, res judicata,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

September 18, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

EVERETT LEE CAVELY,

Defendant-Appellant.

No. 08-5053

(D.C. Nos. 4:04-CV-00367-TCK-FHM

& 4:00-CR-00157-TCK-6)

(N.D. Okla.)

ORDER AND JUDGMENT*

Before TACHA, PORFILIO, and TYMKOVICH, Circuit Judges.

Everett Lee Cavely seeks a certificate of appealability (COA) pursuant to

28 U.S.C. § 2253(c)(1)(B) to challenge the district court’s denial of his motion to

vacate, set aside or correct sentence under 28 U.S.C. § 2255. We deny his request

for a COA and dismiss the appeal.
-2-

Mr. Cavely was convicted of various drug and firearm offenses and

sentenced to 440 months in prison. We affirmed his conviction and sentence,

United States v. Cavely, 318 F.3d 987 (10th Cir.), and the Supreme Court denied

him a writ of certiorari, Cavely v. United States, 539 U.S. 960 (2003). He timely

filed his § 2255 motion but moved to amend it after the one-year filing deadline

expired. Although the district court initially permitted him to amend his § 2255

motion, the court recognized in its March 26, 2008, order that the amendment was

untimely. Nevertheless, the court found that Mr. Cavely’s added claims under

Blakely v. Washington, 542 U.S. 296 (2004), were foreclosed because Blakely

does not apply retroactively.

As for his originally filed § 2255 motion, the court determined that none of

Mr. Cavely’s ineffective assistance of counsel claims warranted relief under

Strickland v. Washington, 466 U.S. 668 (1984). Specifically, the court found that

his trial attorney had not been ineffective in failing to impeach police officers on

the precise timing of Mr. Cavely’s consent to search his business or in failing to

question officers on their justification for performing a protective sweep of his

home. The court also concluded that Mr. Cavely’s appellate attorney had not

rendered ineffective assistance by declining to challenge the sufficiency of the

evidence underlying an element of a firearms conviction. Mr. Cavely appealed,

but the district court denied a COA. His application for a COA is now before this

court.
-3-

An appeal from the district court’s decision may not be taken absent a grant

of COA by this court. 28 U.S.C. § 2253(c)(1)(B). The issuance of a COA is

jurisdictional, Miller-El v. Cockrell, 537 U.S. 322, 336 (2003), and requires an

applicant to make “a substantial showing of the denial of a constitutional right,”

28 U.S.C § 2253(c)(2). An applicant “satisfies this standard by demonstrating

that jurists of reason could disagree with the district court’s resolution of his

constitutional claims or that jurists could conclude the issues presented are

adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at

327. 

The district court refused to grant a COA because Mr. Cavely failed to

make a substantial showing that he was denied a constitutional right and failed to

cite authority indicating that the issues presented could be decided differently. 

We agree with this assessment. Nothing in Mr. Cavely’s appellate materials, the

district court’s orders, or the relevant legal authority suggests that he was denied

a constitutional right or that reasonable jurists would decide the case differently. 

Accordingly, for substantially the same reasons as articulated by the district court

in its orders dated March 26, 2008, and April 4, 2008, we DENY Mr. Cavely’s

request for a COA and DISMISS the appeal.

Entered for the Court

John C. Porfilio

Circuit Judge