134 F.3d 383
98 CJ C.A.R. 451
NOTICE:  Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument,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.James B. KIMBALL, Defendant-Appellant.
No. 97-3069.
United States Court of Appeals, Tenth Circuit.
Jan. 22, 1998.

Before PORFILIO, KELLY, and HENRY, Circuit Judges.


1
ORDER AND JUDGMENT*


2
After examining appellant'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.


3
Defendant appeals from a district court 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).


4
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.



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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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


