                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           SEP 14 1999
                                    TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                       No. 99-6170
 HAROLD EUGENE BELL,                                (D.C. No. 99-CV-348-T)
                                                          (W.D.Okla.)
           Defendant-Appellant.


                                 ORDER AND JUDGMENT       *




Before ANDERSON, KELLY 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)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Harold Eugene Bell seeks a certificate of appealability to appeal the district

court’s denial of his motion for judgment of acquittal and/or new trial, which the

court treated as a 28 U.S.C. § 2255 motion. Bell also seeks permission to proceed


       This order and judgment is not binding precedent, except under the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.
on appeal in forma pauperis. We deny a certificate of appealability and dismiss

the appeal.

      Bell was convicted in 1997 of conspiracy to distribute cocaine powder and

cocaine base. This court affirmed his conviction in   United States v. Bell , 154

F.3d 1205 (10th Cir. 1998). In his motion for judgment of acquittal and/or new

trial filed February 22, 1999, Bell alleged the trial court erred in (1) enhancing his

sentence for possession of a firearm; (2) allowing testimony from co-conspirators

who entered into plea bargains with the government; (3) sentencing him to a

100/1 powder cocaine/crack cocaine quantity ratio; and (4) sentencing him under

a racially biased statute. The district court found Bell’s motion was untimely

under both Fed. R. Crim. P. 29(c) and Fed. R. Crim. P. 33, construed the motion

as a request for relief under 28 U.S.C. § 2255, and directed the government to

respond. After receiving the government’s response, the court agreed that Bell’s

claims were procedurally barred but addressed each claim on its merits and denied

the motion. Bell filed a motion for clarification, asserting his motion was not

time-barred because it was based on newly discovered evidence. The district

court denied the motion for clarification, finding the testimony cited by Bell did

not constitute newly discovered evidence.

      On appeal, Bell contends the district court erred in construing his motion

for judgment of acquittal and/or new trial as a 28 U.S.C. § 2255 motion because


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the motion was based on newly discovered evidence.          See Anderson v. United

States , 443 F.2d 1226, 1227 (10th Cir. 1971) (claims of newly discovered

evidence under Fed. R. Crim. P. 33 are timely if filed within two years after the

mandate of affirmance from the appellate court). However, Bell has never

alleged any newly discovered evidence. The court did not err in treating the

motion as requesting relief under 28 U.S.C. § 2255. The court addressed the

merits of Bell’s claims and found he was not entitled to relief. Bell does not

address those claims in his appeal.

       We DENY Bell’s request for a certificate of appealability because he has

failed to make a substantial showing of a denial of a constitutional right.   See 28

U.S.C. § 2253(c)(2). Bell’s motion for leave to proceed on appeal in forma

pauperis is DENIED. The appeal is DISMISSED. The mandate shall issue

forthwith.

                                                   Entered for the Court

                                                   Mary Beck Briscoe
                                                   Circuit Judge




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