166 F.3d 350
NOTICE:  Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties.  See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
UNITED STATES of America, Plaintiff-Appellee,v.Kenny TAYLOR, Defendant-Appellant.
No. 98-6187.
United States Court of Appeals, Tenth Circuit.
Dec. 17, 1998.

Before BRORBY, BRISCOE, and LUCERO, Circuit Judges.


1
ORDER AND JUDGMENT*

BRORBY

2
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. 34.1.9.  The case is therefore ordered submitted without oral argument.


3
Petitioner Kenny Taylor seeks to appeal from the district court's denial of his motion to vacate, set aside, or correct his sentence, filed pursuant to 28 U.S.C. § 2255.  The district court denied the § 2255 motion as untimely filed, applying United States v. Simmonds, 111 F.3d 737 (10th Cir.1997).  The district court also denied petitioner's request for a certificate of appealability, required by 28 U.S.C. § 2253 before this court can consider his appeal.  Petitioner reurges his request before this court.  He also seeks to proceed in forma pauperis, and moves this court to appoint him counsel on appeal.


4
After review of petitioner's motion and supporting documents, we grant his request to proceed on appeal in forma pauperis.  However, after careful consideration of petitioner's arguments on appeal, we conclude that he has not made a substantial showing that the district court's decision denied him a constitutional right.  See id.  Accordingly, petitioner's request for a certificate of appealability is denied, and this appeal is dismissed.  Petitioner's request for appointment of counsel is denied as moot.  The mandate shall issue forthwith.



*
 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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


