                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                            JAN 22 1998
                             FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 97-3069
                                                     (D.C. No. 96-CV-3528)
    JAMES B. KIMBALL,                                       (D. Kan.)

                Defendant-Appellant.




                             ORDER AND JUDGMENT *



Before PORFILIO, KELLY, and HENRY, Circuit Judges.




         After examining appellant’s brief 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); 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      This order and judgment is not binding precedent, except under the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.
      Defendant appeals from a district court order denying his motion to vacate,

set aside or correct sentence under 28 U.S.C. § 2255. Because the motion was

filed after the effective date of the Antiterrorism and Effective Death Penalty Act

of 1996, our review is conditioned upon the issuance of a certificate of

appealability pursuant to 28 U.S.C. § 2253. See United States v. Kunzman,

125 F.3d 1363, 1364 n.2 (10th Cir. 1997).

      Based upon our review, we conclude that defendant has not “made

a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). Therefore, a certificate of appealability is DENIED, and the

appeal is DISMISSED.



                                                    Entered for the Court



                                                    Paul J. Kelly, Jr.
                                                    Circuit Judge




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