F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 10 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 97-6257
v.
(W. District of Oklahoma)
(D.C. No. 97-CV-745)
PETER I. PHILIPS, also known as
Emaraobebi Idaba,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BALDOCK, EBEL, and MURPHY, Circuit Judges.
After examining the briefs and 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 cause 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This order and judgment is not binding precedent, except under the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.
Peter I. Philips, proceeding pro se and in forma pauperis , seeks to appeal
the district court’s denial of his motion brought pursuant to 28 U.S.C. § 2255.
Because Philips’ motion was filed after the effective date of the Antiterrorism and
Effective Death Penalty Act of 1996, Philips must obtain a certificate of
appealability before he can appeal the denial of his § 2255 motion. 28 U.S.C. §
2253(c)(1)(B); United States v. Kunzman , 125 F.3d 1363, 1364 n.2 (10th Cir.
1997). Although Philips failed to file a request for a certificate of appealability
with this court, we will treat his appellate brief as a request for such a certificate.
In his § 2255 petition, Philips asserted as follows: (1) his guilty plea was
not voluntary but was, instead, the result of the United States’ actions in
“blackmailing, threatening, pressuring, and intimidating” him; and (2) his counsel
was ineffective in failing to properly investigate the crime and inform him of the
possible consequences of a guilty plea. The district court rejected Philips’
contentions, noting that his conclusory allegations were clearly insufficient to
demonstrate that he was prejudiced by the actions of his attorney. Dist. Ct. Order
at 3-4. The district court further noted that the record demonstrated that he was
adequately informed about the nature and consequences of his guilty plea by both
the plea agreement itself and by the district court during the plea colloquy. Id. at
3 n.4.
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Philips is entitled to a certificate of appealability only if he can make “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). He can make such a showing by demonstrating that the district
court’s resolution of the issues set out above is debatable among jurists, that this
court could resolve the issues differently, or that the questions presented deserve
further proceedings. Barefoot v. Estelle , 463 U.S. 880, 893 & n.4 (1983). Upon
de novo review of the parties briefs, the district court’s Order, and the entire
record on appeal, this court concludes that Philips has failed to make a substantial
showing of the denial of a constitutional right for substantially the same reasons
set forth in the district court’s Order dated July 7, 1997. Accordingly, we DENY
Philips a certificate of appealability and DISMISS the appeal.
ENTERED FOR THE COURT:
Michael R. Murphy
Circuit Judge
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