F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 4 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 02-4079
v. (D.C. No. 01-CV-78-J)
(D. Utah)
BYRON LEE KING,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA, Chief Circuit Judge, HOLLOWAY and McKAY, Circuit
Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f). The case is therefore submitted without
oral argument.
This is a 28 U.S.C. § 2255 prisoner appeal. Mr. King pled guilty to one
count of possession of methamphetamine with intent to distribute in violation of
*
This order and judgment is not binding precedent, except under the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.
21 U.S.C. § 841(a)(1). Mr. King was sentenced to the statutory minimum of 120
months of imprisonment. Mr. King did not appeal.
In his § 2255 motion, Mr. King requested that the court vacate his sentence
based on claims that (1) the indictment failed to state the type of
methamphetamine (injectable versus non-injectable), (2) his sentence exceeded
the statutory maximum, and (3) the court lacked jurisdiction to sentence him. The
district court found no merit in Mr. King’s substantive arguments, but did
discover an error in his sentence. The district court granted the § 2255 motion
and ordered Mr. King’s sentence to be reduced to 96 months; it denied the
remainder of the motion. Finding no merit in any of Mr. King’s arguments, the
district court declined to grant him a certificate of appealability. Petitioner then
applied to this court for a certificate of appealability.
In order for this court to grant a certificate of appealability, Petitioner must
make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). To do so, Petitioner must demonstrate “that reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,
484 (2000) (quotations omitted).
We have carefully reviewed the briefs, the district court’s disposition, and
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the record on appeal. Nothing in the facts, the record on appeal, or the briefs
raises an issue which meets our standards for the grant of a certificate of
appealability. We conclude that for substantially the same reasons as set forth by
the district court in its Orders of April 30 and July 31, 2002, we cannot say “that
reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner.” Id.
We DENY Petitioner’s request for a certificate of appealability and
DISMISS the appeal.
Entered for the Court
Monroe G. McKay
Circuit Judge
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