FILED

United States Court of Appeals

Tenth Circuit

December 13, 2017

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

PORTIA LOUDER,

Defendant - Appellant.

No. 17-4022

(D.C. Nos. 2:16-CV-00206-RJS and 

2:11-CR-00876-RJS-DBP-1)

(D. Utah)

ORDER DENYING CERTIFICATE

OF APPEALABILITY

Before KELLY, MURPHY, and MATHESON, Circuit Judges. 

Proceeding pro se, Portia Louder seeks to appeal the district court’s denial

of her 28 U.S.C. § 2255 motion to vacate, set aside, or correct her sentence. The

matter is before this court on Louder’s request for a certificate of appealability

(“COA”). 28 U.S.C. § 2253(c)(1)(B) (providing no appeal may be taken from a

“final order in a proceeding under section 2255” unless the movant first obtains a

COA). Because Louder has not “made a substantial showing of the denial of a

constitutional right,” this court denies her request for a COA and dismisses this

appeal. Id. § 2253(c)(2). Louder’s motion to proceed in forma pauperis is

granted.
Louder was charged by indictment with making false statements, wire

fraud, money laundering, and conspiracy. She underwent a competency

evaluation and the district court found her competent to stand trial. In August

2014, Louder pleaded guilty to the wire fraud and conspiracy counts and was

sentenced to eighty-four months’ imprisonment. Louder did not file a direct

appeal. 

In her pro se § 2255 motion, Louder asserted her guilty plea was not

voluntary because she was not competent when she entered the plea. She also

asserted her guilty plea was coerced. The claims raised in Louder’s motion were

addressed by the district court in a comprehensive memorandum decision and

order. The district court concluded that Louder’s challenges to her convictions

are procedurally barred because they were not raised in a direct appeal. See

United States v. Allen, 16 F.3d 377, 378 (10th Cir. 1994) (“A defendant who fails

to present an issue on direct appeal is barred from raising the issue in a § 2255

motion, unless he can show cause for his procedural default and actual prejudice

resulting from the alleged errors, or can show that a fundamental miscarriage of

justice will occur if his claim is not addressed.”). The court further concluded

that, even in the absence of a procedural bar, the claims had no merit. 

To be entitled to a COA, Louder 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 “that reasonable jurists could debate whether (or,

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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.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations

omitted). In evaluating whether Louder 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 Louder 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.

Having undertaken a review of Louder’s application for a COA and

appellate brief, the district court’s order, and the entire record on appeal pursuant

to the framework set out by the Supreme Court in Miller-El, this court concludes

Louder is not entitled to a COA. The district court’s resolution of her § 2255

motion is not reasonably subject to debate and the issues she seeks to raise on

appeal are not adequate to deserve further proceedings. Accordingly, this court

denies Louder’s request for a COA and dismisses this appeal. 

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge

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