                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                          May 8, 2007
                                TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                       Clerk of Court


 U N ITED STA TES O F A M ER ICA,

              Plaintiff - Appellee,                      No. 06-2318
       v.                                             (D. New M exico)
 HOSKIE W ALTER, SR.,                         (D.C. Nos. CIV-06-404 LH/LCS
                                               and CR-03-2073 LH)
              Defendant - Appellant.



            OR DER DENY ING CERTIFICATE O F APPEALABILITY


Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.


      Hoskie W alter, Sr., pleaded guilty in the United States District Court for

the District of New M exico to one count of abusive sexual contact in Indian

Country. See 18 U.S.C. §§ 1153, 2244(a)(1). The district court sentenced him to

97 months’ imprisonment followed by three years’ supervised release. His plea

agreement contained a waiver of his right to appeal, and he appealed neither his

conviction nor his sentence. Instead he filed a motion under 28 U.S.C. § 2255,

which, as far as we can discern, sought to vacate his term of supervised release

because it was not permitted by the statute of conviction, violated the

constitutional protection against double jeopardy, and violated what he calls the

“Severance Clause of the United States Constitution.” Pet’r M em. of Law in

Supp. of His § 2255 at 1, Walter v. United States, No. 06-404, (D.N.M . July 3,
2006). The M agistrate Judge’s Proposed Findings and Recommended

Disposition, which was adopted by the district court, recommended that the

motion be denied because (1) M r. W alter had not raised these issues on direct

appeal, see United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994) (a

defendant cannot raise issues in a § 2255 motion that he has failed to present on

direct appeal), and (2) he could not escape the procedural bar because he had not

demonstrated good cause for his procedural default and had not suffered actual

prejudice since his contentions had no merit. The district court denied his request

for a certificate of appealability (COA) to appeal the district court’s denial of his

motion, and he now applies to this court for a COA. See 28 U.S.C. § 2253(c)(1)

(requiring COA). W e deny a COA and dismiss the appeal.

      A movant seeking a COA must make a “substantial showing of the denial

of a constitutional right.” § 2253(c)(2). Such a demonstration “includes showing

that reasonable jurists could debate whether (or, for that matter, agree that) the

petition should have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed further.” Slack v.

M cDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted).

M r. W alter has not met this standard.

      The magistrate judge’s analysis of the merits of M r. W alter’s contentions

cannot reasonably be disputed. Addressing first M r. W alter’s contention that

there was no statutory authority for supervised release, we acknowledge that the

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statute under w hich he was convicted does not mention supervised release. See

18 U.S.C. § 2244(a)(1). Another statute, however, 18 U.S.C. § 3583(a), explicitly

allows the court to “include as a part of the sentence a requirement that the

defendant be placed on a term of supervised release after imprisonment.” See

also United States v. Robinson, 62 F.3d 1282, 1285 (10th Cir. 1995). As to

M r. W alter’s double-jeopardy argument, the supervised-release term was not a

multiple punishment but a congressionally authorized part of his original

sentence. See § 3583(a). Finally, no one other than M r. W alter appears to be

familiar with a “Severance Clause” in our Constitution. Some of his pleadings

suggest that he may be referring to separation-of-powers doctrine; but we fail to

see any threat to that doctrine in the imposition of a term of supervised release.

      Because M r. W alter’s contentions clearly lack merit, we need not concern

ourselves with whether they are procedurally barred. W e DENY a COA and

DISM ISS the appeal.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge




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