                                                                 F I L E D
                                                          United States Court of Appeals
                                                                  Tenth Circuit
                       UNITED STATES COURT OF APPEALS SEP 24 2001

                                    TENTH CIRCUIT            PATRICK FISHER
                                                                      Clerk

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
 vs.                                                    No. 01-1062
                                                    (D.C. No. 00-S-2287)
 JEREMY ALEN CURTIS, also known                          (D. Colo.)
 as Jeremy Alan Curtis,

           Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before EBEL, KELLY, and LUCERO, Circuit Judges. **


       Petitioner Jeremy Alen Curtis, an inmate appearing pro se, seeks a

certificate of appealability (“COA”) allowing him to appeal the district court’s

order denying relief on his motion pursuant to 28 U.S.C. § 2255 and a motion

allowing him to proceed on appeal in forma pauperis (“IFP”). We have

jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). Because Mr. Curtis has

       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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 the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
failed to make a “substantial showing of the denial of a constitutional right” as

required by 28 U.S.C. § 2253(c)(2), we deny his request for both the COA and the

IFP and dismiss the appeal for substantially the same reasons given by the district

court. Doc. 42. Apprendi v. New Jersey, 530 U.S. 466 (2000) does not require

that the fact of a prior conviction appear in an indictment. United States v.

Dorris, 236 F.3d 582 (10th Cir. 2000).

      We DENY Mr. Curtis’s request for a COA and IFP and DISMISS this

appeal.

                                         Entered for the Court



                                         Paul J. Kelly, Jr.
                                         Circuit Judge




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