F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
June 1, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 04-1309
v. (D.C. No. 04-S-1405)
DAVID WARREN VEREN, (D. Colorado)
Defendant-Appellant.
ORDER
Before EBEL, McKAY, and HENRY, Circuit Judges.
After examining the briefs 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)(2)(c); 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument.
This is a pro se 28 U.S.C. § 2255 prisoner appeal. Defendant pled guilty to
violation of probation. He was sentenced to twelve months and one day in prison
plus a four-year term of supervised release. Subsequently, Defendant filed a §
2255 motion to vacate, set aside, or correct this sentence with the district court
for the District of Colorado. In his motion, Defendant alleged (1) his conviction
on his predicate offense was not final, (2) his sentence was illegal, (3) his rights
were violated by federal authorities pursuant to Fed. R. Crim. P. 5, and (4) his
probation officer’s statements in the presentence report prejudiced him because
they deliberately misled the court.
The district court, in a detailed opinion, denied Defendant’s motion finding
no merit to any of his claims. The district court declined to grant Defendant a
certificate of appealability. Defendant has renewed his request for a certificate of
appealability with this court. The issues he raises on appeal are identical to those
brought before the district court. *
In order for this court to grant a certificate of appealability, Defendant must
make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). To do so, Defendant 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 Defendant’s brief, the district court’s
disposition, and the record on appeal. Nothing in the facts, the record on appeal,
*
As an additional matter, Defendant raises a constitutional challenge to
Colo. Rev. Stat. § 18-18-412.5 and Colo. Rev. Stat. § 18-18-405(1)(a). However,
we decline to exercise our discretion to consider this issue because Defendant
failed to raise it below. In re Walker, 959 F.2d 894, 896 (10th Cir. 1992).
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or Defendant’s filing raises an issue which meets our standards for the grant of a
certificate of appealability. For substantially the same reasons as set forth by the
district court in its July 30, 2004 Order, 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 Defendant’s request for a certificate of appealability and
DISMISS the appeal. Defendant’s motion to appeal in forma pauperis is
GRANTED.
Entered for the Court
Monroe G. McKay
Circuit Judge
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