United States v. Perkins

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 15 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-7118
(D.C. No. 97-CV-351-S
AMOS ELMER PERKINS, &
95-CR-51-S)
Defendant-Appellant. (E.D. Okla.)
ORDER AND JUDGMENT *
Before PORFILIO , KELLY , and HENRY , Circuit Judges.
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.
*
This order and judgment is not binding precedent, except under the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.
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 , 118 S. Ct. 1375 (1998).
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).
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.
Entered for the Court
Robert H. Henry
Circuit Judge
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