* This order and judgment is not binding precedent except under the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 judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 5 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v. LEONARD JAMES TERNES, Defendant-Appellant. No. 96-5223 (D.C. No. 96-CV-358-C) (N.D. Okla.)

ORDER AND JUDGMENT *
Before BRORBY, EBEL and KELLY , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Mr. Ternes is a federal prisoner and a pro se litig ant. He filed a motion to vacate, set aside, or correct his sentence pursuantto 28 U.S.C. § 2255 (1994). The trial court denied the motion and Mr. Ternes ap peals. We conclude Mr. Ternes is not entitled to a certificate of appealab ility and we dismiss this appeal as frivolous.

We must first decide if Mr. Ternes is entitled to acertificate of appealability. See 28 U.S.C.A. § 2253(c) (West Supp. 1997). Mr. Tern es must make a showing of the denial of an important federa l right by demonstrating the issues raised are debatable among jurists, that a c ourt could resolve the issues differently, or that the questions raised deserve f urther proceedings. Barefoot v. Estelle , 463 U.S. 880 (1983); Lennox v. Evans , 87 F.3d 431 (10th Cir. 1996), cert. denied, 117 S. Ct. 746 (1997).
Reviewing the record on appeal, we find Mr. Ternes was convicted of armed bank robbery and the carrying of a firearm du ring the commission of a crime of violence. He filed a direct appeal and we affirmed in an unpublished opinion dated October 29, 1993. Mr. Ternes' sole g round for relief is insufficiency of the evidence. He states he did no t previously raise this argument as he "has just learned of the issues through legal research." At the crux of Mr.-3-

Ternes' insufficiency argument is a joint stipulati on agreeing the bank Mr. Ternes robbed "was a financial institution insured by the Federal Deposit Insurance Corporation." He argues this stipulation amounted to a stipulation of subject matter jurisdiction and cites law holding the parti es cannot agree to confer jurisdiction upon a court. He further argues that by entering into this stipulation, counsel provided ineffective assistance of counsel. The Government raised procedural default due to Mr. Ternes' failure to ra ise this issue on direct appeal.
Addressing Mr. Ternes' motion, the District Court s tated: Defendant has failed to articulate any cause and pr ejudice, or a miscarriage of justice to excuse his failure to rai se this claim on direct appeal. Even if the claim were not procedur ally barred, Defendant would not be entitled to relief. On appeal, Mr. Ternes argues "[t]he District Court can only take original jurisdiction ... if the crime was committed on prop erty where said jurisdiction was ceeded [sic] to the Government or owned by the Gove rnment."
Mr. Ternes' argument, which is not supported by authority, has no merit. This issue is not debatable by jurists. Likewise, the trial court could not have considered Mr. Ternes' argument absent both cause a nd prejudice or a colorable showing of actual innocence. See United States v. Cook, 997 F.2d 1312, 1320-4-

(10th Cir. 1993). Mr. Ternes makes no such showing . Consequently we must conclude this is a frivolous appeal under the meani ng of 28 U.S.C.A. § 1915(e)(2)(B)(i) (West Supp. 1997).
Mr. Ternes is not entitled to a certificate of appe alability. The appeal is DISMISSED
.

Entered for the Court WADE BRORBY United States Circuit Judge