United States v. Lawrence O. Franklin, 113 F.3d 1247, 10th Cir. (1997)

113 F.
3d 1247
97 CJ C.A.R. 705
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
UNITED STATES of America, Plaintiff-Appellee,

v.
Lawrence O. FRANKLIN, Defendant-Appellant.
No. 96-3234.
United States Court of Appeals, Tenth Circuit.

May 9, 1997.
ORDER*
Before TACHA, BALDOCK, and LUCERO, Circuit Judges.**
Petitioner Lawrence O. Franklin requests a certificate of appealability so that he

may appeal from the district court's denial of his petition to vacate, set aside or
correct an illegal sentence pursuant to 28 U.S.C. 2255. In his petition filed in
the district court, Petitioner raised essentially one issue. Petitioner claimed that
under Bailey v. United States, 116 S.Ct. 501 (1995), he is factually innocent
and his conviction under 18 U.S.C. 924(c) (use or carrying of gun in relation
to a drug offense) must be vacated. On appeal, he claims that the district court
improperly dismissed his petition without holding an evidentiary hearing, and
he reurges that Bailey requires that his conviction be vacated. We deny the
certificate and dismiss the appeal.
When reviewing a district court's denial of a 2255 motion without an

evidentiary hearing, the standard of review is abuse of discretion. United States
v. Whalen, 976 F.2d 1346, 1348 (10th Cir.1992). There was no abuse of
discretion in this case because Petitioner could not possibly prevail, regardless
of the evidence introduced. Moreover, there has been no showing of a
substantial deprivation of a constitutional right. See 28 U.S.C. 2253(c)

(requiring a showing of substantial deprivation of a constitutional right before
certificate of appealability may issue in a 2255 case).
3
Petitioner pleaded guilty to the charges which he is challenging. Accordingly,

he is precluded from challenging the factual basis of the plea. United States v.
Broce, 488 U.S. 563, 568 (1989). Moreover, the facts presented to the district
court at the hearing where Petitioner entered his plea are conclusively admitted
by Petitioner. He may not now challenge the veracity of those facts.
The only question presented is whether, when the evidence is viewed in a light
most favorable to the government, a sufficient factual basis exists to show that
Petitioner carried a firearm. See United States v. Wacker, 72 F.3d 1453, 1464
(10th Cir.1995). Petitioner argues that there was no evidence that the gun was
not present merely on account of coincidence or mistake. This position ignores
the evidence that his co-defendant stated that Petitioner always had the gun
with him in drug deals and that he liked to make a show of force. Along with
Petitioner's admission that the gun was his and the proximity of the gun to him,
this evidence provides ample basis for this conviction. See United States v.
Nicholson, 983 F.2d 983, 990 (10th Cir.1993).
After a thorough review of Petitioner's brief, the district court order, and the
record, we find no substantial showing of the deprivation of a constitutional
right. See 28 U.S.C. 2253.
APPLICATION DENIED AND APPEAL DISMISSED.
This order is not binding precedent, except under the doctrines of law of the
case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. Cir. R. 36.3
**
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties' request for a decision on the briefs without
oral argument. See Fed. R.App. P. 34(f); 10th Cir. Cir. 34.1.9. The case is
therefore ordered submitted without oral argument

United States v. Lawrence O. Franklin, 113 F.3d 1247, 10th Cir. (1997)

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United States v. Lawrence O. Franklin, 113 F.3d 1247, 10th Cir. (1997)

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113 F.

UNITED STATES of America, Plaintiff-Appellee,

United States Court of Appeals, Tenth Circuit.

Petitioner Lawrence O. Franklin requests a certificate of appealability so that he

When reviewing a district court's denial of a 2255 motion without an

substantial deprivation of a constitutional right. See 28 U.S.C. 2253(c)

Petitioner pleaded guilty to the charges which he is challenging. Accordingly,

APPLICATION DENIED AND APPEAL DISMISSED.

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