*

 This order is not binding precedent, except under the doctrines of law of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 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 is a pro se 28 U.S.C. § 2255 appeal. Mr. Vann pleaded guilty to being

a Felon in Possession of Ammunition, in violation of 18 U.S.C. § 922(g)(1). 

Subsequently, Mr. Vann filed a motion to vacate, set aside, or correct his federal

sentence with the district court. In his motion, Mr. 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 sentence 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, holding 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 defined 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 constitutional 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) the petition should have been

resolved in a different manner or that the issues presented 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 district court’s
1

 Furthermore, the district court did not have the benefit of United States v.

Price, 400 F.3d 844, 845 (10th Cir. 2005), wherein we held that Blakely does 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 our standard for the grant of a

certificate of appealability. For substantially the same reasons1 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 appealability and

DISMISS the appeal. His motion to proceed in forma pauperis on appeal is

GRANTED.

Entered for the Court

Monroe G. McKay

Circuit Judge