United States v. Swallow , 35 F. App'x 804 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 22 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 01-6272
(D.C. Nos. 99-CV-556-M,
RONALD WILLIAM SWALLOW, 97-CR-181-M)
(W.D. Oklahoma)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR , PORFILIO , and BALDOCK , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the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.
Appellant Ronald William Swallow appeals from the district court’s denial
of his motion to vacate, set aside, or correct his sentence filed pursuant to
28 U.S.C. § 2255. The district court ruled that appellant’s only challenge to his
sentence–an attack on the validity of part of a restitution order–was not a
cognizable claim under § 2255 because the language of that statute limits relief
“only to those prisoners who ‘claim[] the right to be released’ from custody.”
Rec. Vol. I, doc. 32, at 4 (quoting § 2255). Appellant now contends that this
ruling is contrary to both published and unpublished decisions of this circuit.
Aplt. Br. at 4.
To proceed on appeal before this court, appellant must obtain a certificate
of appealability (COA), see 28 U.S.C. § 2253(c)(1)(B). The district court denied
his motion for a COA, and he reurges his motion here. A COA will not issue
unless appellant makes “a substantial showing of the denial of a constitutional
right.” Id. § 2253(c)(2). He can make such a showing by demonstrating that the
issues he seeks to raise are debatable among jurists of reason or deserving of
further proceedings. See Slack v. McDaniel , 529 U.S. 473, 484 (2000).
We conclude that appellant has not met the standards for the issuance of a
COA. First, neither his arguments challenging the district court’s interpretation
of § 2255 nor his substantive challenge to the restitution order are of
constitutional dimension, which is required by the COA standards set forth in
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§ 2253(c)(2). See United States v. Gordon , 172 F.3d 753, 754 (10th Cir. 1999).
Further, although there are no decisions by this court that address the availability
of § 2255 to challenge a restitution order, all of the circuits that have addressed
the issue agree that challenges to restitution may not be considered in § 2255
proceedings. See United States v. Kramer , 195 F.3d 1129, 1130 (9th Cir. 1999)
(collecting cases). Therefore, appellant has not demonstrated that the issue is
debatable among reasonable jurists, and he has not argued that it is deserving of
further development.
Appellant’s motion for a COA is DENIED and this appeal is DISMISSED.
Entered for the Court
John C. Porfilio
Circuit Judge
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