                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            SEP 15 1998
                            FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 97-7118
                                                     (D.C. No. 97-CV-351-S
    AMOS ELMER PERKINS,                                           &
                                                                95-CR-51-S)
                Defendant-Appellant.                      (E.D. Okla.)




                                ORDER AND JUDGMENT         *




Before PORFILIO , KELLY , and HENRY , Circuit Judges.




         After examining defendant’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      This order and judgment is not binding precedent, except under the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 the district court’s 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),       cert. denied , 118 S. Ct. 1375 (1998).

      Defendant argues that this court should issue a certificate of appealability

because he was denied effective assistance of counsel at sentencing and on direct

appeal. According to defendant, counsel should have challenged a four-point

sentencing enhancement under U.S.S.G. § 2K2.1(b)(5).

      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. Defendant’s request for appointment of counsel is DENIED.

The mandate shall issue forthwith.



                                                          Entered for the Court



                                                          Robert H. Henry
                                                          Circuit Judge



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