F I LED

United States Court of Appeals

Tenth Circuit

April 17, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 06-6295

v. (W.D. Oklahoma)

DIANE LENORE GRIFFITH,

Defendant-Appellant.

(D.C. Nos. 06-CV-424-R and

02-CR-92-R)

ORDER

Before KELLY, MURPHY, and O’BRIEN, Circuit Judges.

This matter is before the court on Diane Lenore Griffith’s pro se request for

a certificate of appealability (“COA”). Griffith, a federal prisoner, seeks a COA

so she can appeal the district court’s denial of her 28 U.S.C. § 2255 motion. 

28 U.S.C. § 2253(c)(1)(B). Because Griffith has not “made a substantial showing

of the denial of a constitutional right,” id. § 2253(c)(2), this court denies her

request for a COA and dismisses this appeal.

Following a jury trial, Griffith was found guilty of conspiracy and wire

fraud. United States v. Dazey, 403 F.3d 1147, 1159 (10th Cir. 2005). This court

affirmed Griffith’s convictions on direct appeal. Id. at 1179. Griffith then filed

the instant § 2255 motion, asserting her convictions were void ab initio because

the district court lacked jurisdiction to try her and her trial did not comport with
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the Speedy Trial Act, 18 U.S.C. § 3161, et seq. The district court denied

Griffith’s § 2255 motion, concluding as follows: (1) it had jurisdiction to try the

charges against Griffith pursuant to 18 U.S.C. § 3231; (2) Griffith’s

jurisdictional challenge was, in essence, a disguised challenge to the sufficiency

of the evidence supporting her convictions, challenges already rejected by this

court on direct appeal; (3) Griffith was procedurally barred from raising a claim

under the Speedy Trial Act because she had failed to raise such a claim on direct

appeal.

The granting of a COA is a jurisdictional prerequisite to Griffith’s appeal

from the denial of her § 2255 motion. Miller-El v. Cockrell, 537 U.S. 322, 336

(2003). To be entitled to a COA, Griffith must make “a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the

requisite showing, she must demonstrate “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.” Id. (quotations omitted). In evaluating

whether Griffith has satisfied her burden, this court undertakes “a preliminary,

though not definitive, consideration of the [legal] framework” applicable to each

of her claims. Id. at 338. Although Griffith need not demonstrate her appeal will

succeed to be entitled to a COA, she must “prove something more than the

absence of frivolity or the existence of mere good faith.” Id.
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Having undertaken a review of Griffith’s voluminous appellate filings, the

district court’s order, and the entire record before this court pursuant to the

framework set out by the Supreme Court in Miller-El, we conclude Griffith is not

entitled to a COA. The district court’s resolution of Griffith’s § 2255 motion is

not reasonably subject to debate and the issues she seeks to raise on appeal are

not adequate to deserve further proceedings. Griffith’s claims regarding the

jurisdiction of the district court to try the charges against her are, to say the very

least, fanciful and frivolous. Accordingly, this court DENIES Griffith’s request

for a COA and DISMISSES this appeal. Griffith’s motion to proceed on appeal

in forma pauperis; “Motion to disqualify the entire 1st, 2nd, 3rd, 4th, 5th, 6th,

7th, 8th, 9th, 10th, 11th, and District of Columbia Circuits for Cause:

racketeering”; and Motion for Release on Bond Pending Appeal are likewise

DENIED.

Entered for the Court

Elisabeth A. Shumaker, Clerk

By:

Deputy Clerk