                                                                           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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