                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           APR 1 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 97-6262
                                                   (D.C. No. CIV-96-498-C)
    HAROLD FREDERICK KRUEGER,                            (W.D. Okla.)

                Defendant-Appellant.




                            ORDER AND JUDGMENT *



Before BRORBY, BARRETT, and BRISCOE, 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); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the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.
      Harold Frederick Krueger appeals from the district court’s order denying

his motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C.

§ 2255. Appellant was convicted and sentenced on counts of conspiracy, mail

fraud, wire fraud, and money laundering. Our jurisdiction arises under 28 U.S.C.

§§ 1291 and 2553. Because appellant’s § 2255 motion was filed after the

enactment of the Antiterrorism and Effective Death Penalty Act of 1996, the

certificate of appealability provision created by that act is applicable to his case.

Cf. United States v. Kunzman, 125 F.3d 1363, 1364 n.2 (10th Cir. 1997), cert.

denied, No. 97-8055, 1998 WL 86544 (U.S. Mar. 30, 1998). The district court

denied appellant a certificate of appealability. Therefore, appellant must

demonstrate “a substantial showing of the denial of a constitutional right” before

this court considers his appeal. 28 U.S.C. § 2253(c)(2).

      Appellant presents six arguments on appeal. In his first two points, he

challenges as false certain testimony of agent Barry Black and witness Crawford

Cameron presented to the grand jury which indicted him. Before the district

court, he contended that this and other allegedly false evidence demonstrated

ineffective assistance of counsel, asserting that his counsel should have filed

a pre-trial motion to dismiss the indictment. The district court concluded that

this argument was moot in light of the jury’s findings convicting appellant on all

counts of the indictment and this court’s affirmance of his conviction on


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sufficiency of evidence grounds. District Court Order at 5. We agree, and note

that appellant does not challenge the district court’s analysis or ruling on this

point. His arguments on appeal do not demonstrate ineffective assistance of

counsel.

      Appellant’s third and fourth arguments assert that certain evidence

presented at trial was false. He alleges as false witness Mark Lippert’s testimony

regarding the dates of execution and notarization of a lease document. The

district court ruled that because the lease itself was admitted as evidence at trial,

the issue about the dates of execution and notarization was not falsely presented

to the jury. Appellant argues that the lease document could not correct Lippert’s

allegedly false testimony, and contends that this evidence “was very material to

destroying Appellant’s veracity with the Jury.” Appellant’s Br. at 7. He also

contends that the trial court erred in omitting testimony from Jane Hardin which

would have demonstrated the existence of Barry Kent. The district court rejected

this contention, noting that the matter was “fully explored” at trial, District Court

Order at 3, and that evidence was presented on both sides. Appellant responds

that omitting this evidence allowed the government to impeach his credibility and

served as a basis for a sentencing enhancement. Because we agree with the court

that evidence was admitted at trial from which the jury could have believed

appellant’s version of the facts on both of these points, and because credibility is


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the unique province of the jury, see United States v. Smith, 131 F.3d 1392, 1399

(10th Cir. 1997), cert. denied, 118 S. Ct. 1109 (1998), these arguments do not

demonstrate error of constitutional magnitude.

      Appellant’s fifth point contends that the government’s response to his

§ 2255 motion did not address all of his arguments and, therefore, the district

court should have considered those matters admitted under Rule 8(d) of the

Federal Rules of Civil Procedure. Our review of the government’s response,

however, indicates that the government addressed each of appellant’s arguments,

including those he specifically identifies on appeal. Further, we conclude that

Rule 8(d) applies to factual averments, not legal argument. Appellant’s final

contention challenges the district court’s order as incomplete. We have

reviewed the court’s order in light of his specific complaints and conclude

that the district court thoroughly addressed all of the issues raised in appellant’s

§ 2255 motion. This argument is without merit.

      Because appellant’s arguments on appeal fail to demonstrate a substantial

showing of the a denial of a constitutional right, we deny appellant’s application

for a certificate of appealability. Accordingly, this appeal is DISMISSED.




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Appellant’s request for a hearing on his § 2255 motion is denied as moot.

The mandate shall issue forthwith.


                                                   Entered for the Court



                                                   Mary Beck Briscoe
                                                   Circuit Judge




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