United States v. Amos Elmer Perkins

161 F.3d 19 98 CJ C.A.R. 4846

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument,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. Amos Elmer PERKINS, Defendant-Appellant.

No. 97-7118. (D.C. No. 97-CV-351-S)

United States Court of Appeals, Tenth Circuit.

Sept. 15, 1998.

Before PORFILIO, KELLY, and HENRY, Circuit Judges.

ORDER AND JUDGMENT *

HENRY, Circuit Judge.

1

After examining defendant's brief 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); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

2

Defendant appeals from the district court's order denying his motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 . Because the motion was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, our review is conditioned upon the issuance of a certificate of appealability pursuant to 28 U.S.C. § 2253 . See United States v. Kunzman, 125 F.3d 1363 , 1364 n. 2 (10th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1375 , 140 L.Ed.2d 523 (1998).

3

Defendant argues that this court should issue a certificate of appealability because he was denied effective assistance of counsel at sentencing and on direct appeal. According to defendant, counsel should have challenged a four-point sentencing enhancement under U.S.S.G. § 2K2.1(b)(5).

4

Based upon our review, we conclude that defendant has not "made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253 (c)(2). Therefore, a certificate of appealability is DENIED, and the appeal is DISMISSED. Defendant's request for appointment of counsel is DENIED. The mandate shall issue forthwith.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir.R. 36.3