                                                                                F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                                  DEC 4 1997
                                   TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                      Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
                                                             No. 97-5106
 v.                                                     (D.C. No. 97-CV-42-B)
                                                             (N.D. Okla.)
 ALVIN MANSKER,

       Defendant-Appellant.


                             ORDER AND JUDGMENT *


Before BRORBY, EBEL, and KELLY, Circuit Judges.




       Petitioner Alvin Mansker requests a certificate of appealability in order to

appeal the district court's dismissal of his motion to vacate, set aside, or correct

an illegal sentence pursuant to 28 U.S.C. § 2255. We deny the certificate and

dismiss the appeal.




       *
        After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs 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 This order and judgment is not binding precedent, except under the doctrines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.
      In 1992 Mr. Mansker pleaded guilty to a charge of conspiracy to distribute

50 grams or more of crack cocaine pursuant to a plea agreement. In return for Mr.

Mansker’s guilty plea as well as his cooperation and truthful testimony, the

Government promised not to charge him for other acts connected to the

conspiracy, and to grant him immunity for the use and disclosures of his

testimony. In that agreement the Government also promised that if Mr. Mansker

made a good-faith effort to provide the Government with “substantial assistance”

the Government would file a motion with the court, either before or after

sentencing, for the purpose of allowing the court to depart downward from the

mandatory minimum of ten years imprisonment prescribed in the Sentencing

Guidelines.

      Mr. Mansker cooperated with the Government at first, until he learned that

a co-defendant who had cooperated with the Government had been murdered

shortly after sentencing. From that point on, Mr. Mansker refused to cooperate as

per the plea agreement. As a result, the Government refused to file the

“substantial assistance” motion with the court. Mr. Mansker requested that the

district court allow him to withdraw his guilty plea. The district court refused.

The court sentenced him to the mandatory minimum sentence of ten years

imprisonment.




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      On direct appeal before this court Mr. Mansker claimed (1) that the district

court abused its discretion by refusing to allow him to withdraw his guilty plea,

and (2) that the government breached the plea agreement by refusing to file a

motion recommending a downward departure in his sentence for substantial

assistance. We denied both of Mr. Mansker’s claims. See United States v.

Mansker, No. 93-5022 (10th Cir. Aug. 16, 1993) (unpublished).

      On January 15, 1997, Mr. Mansker filed a 28 U.S.C. § 2255 attack on his

sentence. In that motion, Mansker (1) again claimed that the Government

breached the plea agreement; (2) raised for the first time the claim that his

sentence was a violation of 18 U.S.C. § 3553(a)(6) in that it created unwarranted

sentence disparities among defendants with similar records found guilty of similar

conduct; and (3) raised for the first time a claim that his sentence should be

reduced under the “safety valve” provision of 18 U.S.C. § 3553(f). The district

court denied Mr. Mansker’s motion on the grounds that (1) the plea agreement

issue was addressed by this court’s decision in Mr. Mansker’s direct appeal, thus

barring relief via collateral attack; (2) Mr. Mansker’s 18 U.S.C. § 3553(a)(6)

disparate sentence claim failed on the merits; and (3) Mr. Mansker’s 18 U.S.C. §

3553(f) safety valve claim failed as he was sentenced before passage of this

provision.




                                         -3-
      Because Mr. Mansker’s § 2255 motion was filed with the district court after

enactment of the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), the provisions of that act requiring § 2255 appellants to obtain a

certificate of appealability apply in this case. See United States v. Kunzman, 125

F.3d 1363, 1365 n.2 (10th Cir. 1997). The certificate of appealability may only

be granted upon substantial showing of the denial of a constitutional right. See

28 U.S.C. § 2253(c)(2) (West Supp. 1997). We have held that the standard for

granting a certificate of appealability under the AEDPA is the same as the

standard set out by the Supreme Court in Barefoot v. Estelle, 463 U.S. 880

(1983). See Lennox v. Evans, 87 F.3d 431, 434 (10th Cir. 1996), cert. denied

117 S.Ct. 746 (1997) and overruled on other grounds by Kunzman, 125 F.3d at

1365 n.2. Under the Barefoot standard, a certificate will issue only where the

petitioner has demonstrated the issues raised are debatable among jurists of

reason, a court could resolve the issues differently, or the questions presented are

deserving of further proceedings. See Barefoot, 463 U.S. at

893 n.4.

      Mr. Mansker has failed to make such a showing. Accordingly, the

certificate of appealability is DENIED and the appeal is DISMISSED.




                                         -4-
The mandate shall issue forthwith.

                               ENTERED FOR THE COURT



                               David M. Ebel
                               Circuit Judge




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