                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         JAN 6 1999
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 98-3265
v.                                                 (District of Kansas)
                                                 (D.C. No. 98-3160-RDR)
DALE ALLEN ROBERTSON,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before TACHA, McKAY, and MURPHY, 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 court

therefore honors the petitioner’s request and orders the case 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       This order and judgment is not binding precedent, except under the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.
       This case is before the court on    pro se petitioner Dale Robertson’s

application for a certificate of appealability pursuant to 28 U.S.C. § 2253(c).

Robertson seeks to appeal the district court’s denial of Robertson’s 28 U.S.C. §

2255 petition for post-conviction relief. Because Robertson has failed to make a

substantial showing of the denial of a constitutional right, this court        denies

Robertson a certificate of appealability and          dismisses this appeal.

       In 1991, Robertson was indicted on federal bank robbery and weapon

charges. Prior to his trial, Robertson was involved in a serious automobile

accident and was in a coma for thirty-one days. As a result of the accident and

coma, Robertson lost his memory of events occurring during the time period of

the indictment. Nevertheless, after a hearing on the issue, the trial court

concluded that Robertson was competent to stand trial and competent to assist his

counsel. Ultimately, a jury convicted Robertson on all three counts of the

indictment. On appeal of his conviction to this court, Robertson raised the

following issues: (1) a confession he gave in the hospital after the accident was

involuntary and obtained in violation of         Miranda ; (2) the procedures utilized for

an in-court identification were unduly suggestive; and (3) the trial court abused

its discretion in admitting the testimony of two government witness.              United

States v. Robertson , 19 F.3d 1318 (10     th
                                                Cir. 1994). Upon review of the issues

raised by Robertson, this court affirmed his convictions.          Id. at 1325.


                                                -2-
      On May 18, 1998, Robertson filed a motion to “vacate” his sentence

pursuant to § 2255. As grounds for the petition, Robertson argued as follows: (1)

newly discovered evidence in the form of recovered memories, proved he is

innocent of the crimes for which he was convicted; and (2) his trial counsel was

ineffective. After ordering Robertson to file a supplemental brief on the issue of

the newly recovered memories, the district court issued an order denying relief.

As to Robertson’s claim regarding the newly discovered memories, the district

court concluded the claim simply alleged Robertson was factually innocent.

According to the district court, “A claim of factual innocence based on newly

discovered evidence is not sufficient to support relief under § 2255 without a

claim of a constitutional or legal violation in the trial of the case.” Dist. Ct.

Order at 2 (citing Guinan v. United States , 6 F.3d 468, 470 (7    th
                                                                        Cir. 1993); see

also Sellers v. Ward , 135 F.3d 1333, 1338-39 (10    th
                                                          Cir. 1998) (holding in a §

2254 case that a claim of actual innocence is not a basis for federal habeas corpus

relief no matter how convincing the evidence). As to Robertson’s claim of

ineffective assistance, the district court concluded the claim should be denied on

two grounds. First, Robertson filed his petition well outside the limitations

period set out in 28 U.S.C. § 2243(d). Furthermore, Robertson had not alleged a

government created impediment to the bringing of a timely ineffective assistance

claim nor that the facts necessary to the claim were only recently discovered or


                                           -3-
discoverable. See 28 U.S.C. 2243(d)((1)(B), (D). Second, Robertson’s claim of

ineffective assistance was far too conclusory to merit a hearing or further

treatment.   1



      Under § 2253, Robertson’s appeal may not be considered unless he first

obtains a certificate of appealability. A certificate of appealability will issue only

if the issues raised in the petition are debatable among jurists of reason, if a court

could resolve the issues differently, or if the questions presented are deserving of

further proceedings. See Barefoot v. Estelle, 463 U.S. 880, 893 & n.4. (1983).

Upon review of Robertson’s application for a certificate of appealability and

appellate brief, the district court’s Order, and the entire record on appeal, this

court concludes, for substantially the same reasons set forth in the district court’s

Order dated June 29, 1998, that Robertson cannot satisfy this burden and is not

entitled to a certificate of appealability.

      Robertson’s application for a certificate of appealability is DENIED and

this appeal is DISMISSED.

                                         ENTERED FOR THE COURT:


                                         Michael R. Murphy
                                         Circuit Judge


      1
        The entire extent of Robertson’s allegations with regard to this claim are
as follows: “I could not, nor would my attorney allow me to assist him in
defending me.”

                                              -4-
