F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 4 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 01-6221
v. (Western District of Oklahoma)
(D.C. No. 01-CV-202-C)
RUSSELL TRAIL,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HENRY, BRISCOE, 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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
This case is before the court on Russell Trail’s request for a certificate of
appealability (“COA”). Trail seeks a COA so that he can appeal the district
*
This order and judgment is not binding precedent, except under the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.
court’s denial of his 28 U.S.C. § 2255 motion. See 28 U.S.C. § 2253(c)(1)(B)
(providing that no appeal may be taken from a “final order in a proceeding under
section 2255” unless the movant first obtains a COA). This court denies Trail’s
request for a COA and dismisses the appeal.
In his § 2255 motion, Trail raised the following three claims: (1) the
government breached the plea agreement at sentencing; (2) his sentence violates
United States Sentencing Guidelines §§ 1B1.8 and 2D1.1; and (3) his counsel was
ineffective. The district court concluded that Trail’s motion should be denied
because it was filed outside of the limitations period set out in 28 U.S.C. §
2244(d) and because Trail had not demonstrated adequate grounds for equitably
tolling the limitations period.
To be entitled to a COA, Trail must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(3). To make the requisite
showing, Trail must demonstrate both that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling and
debatable whether the § 2255 motion states a valid constitutional claim. See
Slack v. McDaniel, 529 U.S. 474, 484-85 (2000). This court has reviewed Trail’s
request for a COA and appellate brief, the district court’s order, and the entire
record on appeal. Our review demonstrates the district court’s determination that
Trail’s § 2255 motion is time-barred is not reasonably debatable. We have
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nothing to add to the thorough analysis set out in the district court’s order.
Accordingly, this court DENIES Trail’s request for a COA and DISMISSES this
appeal for substantially those reasons set out in the district court’s order dated
May 17, 2001.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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