* This order is not binding precedent, except under the doctrines of law of

the case, res judicata, and collateral estoppel. 

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

### APR 22 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 04-7125
v. (D.C. No. 04-CV-397-W) ADAM DALE VANN, (E.D. Okla.)

Defendant-Appellant.

ORDER *

Before EBEL , McKAY , and HENRY, Circuit Judges.

After examining the briefs and the appellate record , this panel has determined unanimously that oral argument would notmaterially 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 ora l argument. This is a pro se 28 U.S.C. § 2255 appeal. Mr. Vann pleaded guilty to being a Felon in Possession of Ammunition, in violation o f 18 U.S.C. § 922(g)(1). Subsequently, Mr. Vann filed a motion to vacate, se t aside, or correct his federal sentence with the district court. In his motion, M r. Vann alleged: (1) his counsel-2-

failed to provide him effective assistance, (2) his guilty plea was not voluntary, (3) his plea agreement was coerced, and (4) his sen tence was illegal based on the Supreme Court’s recent decision in Blakely v. Washington , __U.S.__, 124 S. Ct. 2531 (2004). The district court denied Mr. Vann’s motion, holdin g that because he knowingly and voluntarily entered his plea of guilty his sentence was appropriate. The court also held that Mr. Vann failed to allege any fact showing that his counsel’s conduct was unreasonable as the term is d efined in Strickland v. Washington , 466 U.S. 668, 688-89 (1984). Finding no merit in any of Mr. Vann’s arguments, the district court declined to grant him a certificate of appealability. Mr. Vann then applied to this court for a certificate of appealability. The issues he raises on appeal are identical to those brought before the district court. In order for this court to grant a certificate of appealability, appellant must make a “substantial showing of the denial of a cons titutional right.” 28 U.S.C. § 2253(c)(2). To do so, appellant must demonstrate “ that reasonable jurists could debate whether (or, for that matter, agree that) th e petition should have been resolved in a different manner or that the issues p resented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (quotations omitted). We have carefully reviewed Mr. Vann’s brief, the di strict court’s1 Furthermore, the district court did not have the b enefit of United States v.

Price , 400 F.3d 844, 845 (10th Cir. 2005), wherein we he ld that Blakelydoes not apply retroactively to initial § 2255 motions. -3- disposition, and the record on appeal. Nothing in the facts, the record on appeal, or Mr. Vann’s filing raises an issue which meets ou r standard for the grant of a certificate of appealability. For substantially th e same reasons 1 set forth by the district court in its Order of November 2, 2004, we cannot say “that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner.” Id. We DENY Mr. Vann’s request for a certificate of appealabil ity and DISMISS the appeal. His motion to proceed in forma pauper is on appeal is GRANTED

. Entered for the Court

Monroe G. McKay Circuit Judge