United States v. Trail

23 F. App'x 983

Opinion

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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata and collateral estoppel.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

-2- 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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