                                                                                F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                 JUN 23 1998
                                    TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                     Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                           No. 97-3282
 KENNITH D. MOBERLY,                                    (D.C. No. 92-10095-01)
                                                               (D. Kan.)
           Defendant-Appellant.




                                 ORDER AND JUDGMENT*


Before BALDOCK, EBEL, and MURPHY, Circuit Judges.**


       Defendant Kennith D. Moberly seeks a certificate of appealability to appeal the

district court’s decision denying his 28 U.S.C. § 2255 motion to vacate, set aside, or




       *
          This order and judgment is not binding precedent, except under the doctrines of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.
       **
         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); 10th Cir. R. 34.1.9. The case is therefore ordered
submitted without oral argument.
correct his sentence.1 We exercise jurisdiction pursuant to 28 U.S.C. §§ 2253 and 2255.

Concluding Defendant has made no substantial showing of the denial of a constitutional

right, we deny his application for a certificate of appealability and dismiss the appeal.

       Defendant is an inmate at the Federal Correctional Institution in El Reno,

Oklahoma where he is serving consecutive 60 month sentences for, inter alia, using or

carrying a firearm during the commission of a felony in violation of 18 U.S.C. § 924(c).

Subsequent to entering his guilty plea, the United States Supreme Court adopted a narrow

construction of § 924(c)’s “use” prong in Bailey v. United States, 516 U.S. 137 (1995).

Relying on Bailey, Defendant filed a motion pursuant to 28 U.S.C. § 2255 seeking to

vacate his sentence on the grounds that the facts to which he pled guilty no longer

amounted to a crime.

       The district court’s task of evaluating Defendant’s § 2255 motion was hampered

because no transcript of the plea hearing existed. Therefore, the district court conducted

an evidentiary hearing, at which Defendant and several additional witnesses testified, to

determine whether Defendant freely and voluntarily pled guilty to facts supporting a

§ 924(c) conviction. After considering the witnesses’ testimony, facts within the

presentence report to which Defendant did not object and the indictment, the district court

concluded that Defendant did not meet his burden of proving that his plea was



       1
        Defendant’s “Motion for Leave to Proceed Pro Se and Leave for Extension of
Time to File a Petition for Certificate of Appealability and Opening Brief” is granted.

                                              2
involuntary or that there was no factual basis for the plea. Accordingly, the district court

denied Defendant’s § 2255 motion.

       Advised by his counsel that the district court’s decision left no non-frivolous

grounds for appeal, Defendant insisted on filing this appeal. Counsel, therefore, filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967), and requests that we allow

him to withdraw. Responding to the Anders brief, Defendant argues that the district court

erroneously found that he “carried a firearm in relation to a drug trafficking offense,” and

that the court’s finding deprived him of his rights to due process and equal protection

under the law.2

       We have reviewed Defendant’s application for a certificate of appealability, his

brief, counsel’s Anders brief, the district court’s order, and the entire record before us.

We conclude that Petitioner has not demonstrated that the district court’s disposition of

his § 2255 petition is debatable, reasonably subject to a different outcome on appeal, or

otherwise deserving of further proceedings. See Barefoot v. Estelle, 463 U.S. 880, 893 &

n. 4 (1983) (substantial showing of denial of constitutional right shown by demonstrating



       2
         The government argues that because Defendant did not timely file his notice of
appeal as required by Fed. R. App. P. 4(a)(1), we have no jurisdiction over this appeal.
The deadline for Defendant to file his notice of appeal was September 15, 1997. On
September 17, 1997, two days after this deadline, Defendant filed a motion pursuant to
Fed. R. App. P. 4(a)(5) to extend the time for filing his notice of appeal. Defendant filed
his notice of appeal on September 19, 1997. The district court granted Defendant’s
motion later that day. Thus, Defendant’s appeal was timely filed and we may proceed to
the merits. Cf. Hinton v. City of Elwood, 997 F.2d 774, 777-779 (10th Cir. 1993).

                                              3
that: (1) issues raised are debatable among jurists, (2) an appellate court could resolve

issues differently, or (3) the questions deserve further proceedings.). Accordingly, we

DENY Petitioner’s motion for a certificate of appealability and DISMISS his appeal.

Counsel’s motion to withdraw pursuant to Anders is GRANTED.



                                                  Entered for the Court,



                                                  Bobby R. Baldock
                                                  Circuit Judge




                                              4
