* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral 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 

### APR 23 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. DAVID RAY GADDIS,

Defendant-Appellant. No. 00-6256 (D.C. No. CIV-00-387-C) (W.D. Okla.)

ORDER AND JUDGMENT *

Before EBEL , PORFILIO , and LUCERO , 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)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Defendant David Gaddis appeals the district court’s denial of his motion to vacate, set aside, or correct sentence, brought pur suant to 28 U.S.C. § 2255.-2-

Because defendant has not made a substantial showin g of the denial of a constitutional right, we deny his application for acertificate of appealability and dismiss his appeal. After a jury trial, defendant was convicted of cons piracy, wire fraud, engaging in monetary transactions derived from ille gal activities, and money laundering, for which he received concurrent forty- six month sentences and a restitution order in the amount of $309,000. We af firmed his conviction in United States v. Gaddis , No. 98-6273, 1999 WL 824416 (10th Cir. Oct. 15, 1 999) (unpublished disposition). In February 2000, defendant filed this § 2255 motio n, alleging his trial counsel was deficient in failing to object to each of the counts in the indictment. In March 2000, defendant filed an addendum to his m otion, alleging that his attorney was ineffective in failing to investigate the role played by former United States Attorney Daniel Webb in bringing the charges against defendant. The district court denied the § 2255 motion on the ground that its allegations were unsubstantiated, conclusory, speculative, and “far -fetched.” R. doc. 121, at 3. Defendant appeals the denial of his § 2255 motion. Before we may address the merits of this appeal, de fendant must obtain a certificate of appealability by making a substantia l showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To meet this burden, he must show-3-

that “reasonable jurists would find the district co urt’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel , 120 S. Ct. 1595, 1604 (2000). After reviewing defendant’s brief and the record, w e conclude that he has not met his burden. Defendant’s argument regardingthe possibility that former U.S. attorney Webb somehow influenced the prosecuti on against him is mere speculation, with no evidentiary support whatsoever . Under these circumstances, the district court was not required to hold a heari ng, to permit discovery, or to grant the § 2255 motion. See Hatch v. Oklahoma , 58 F.3d 1447, 1471 (10th Cir. 1995) (evidentiary hearing); Wallace v. Ward , 191 F.3d 1235, 1245 (10th Cir. 1999) (discovery), cert. denied , 530 U.S. 1216 (2000); Smallwood v. Gibson , 191 F.3d 1257, 1280 n.14 (10th Cir. 1999) (habeas relief), cert. denied , 121 S. Ct. 88 (2000). Further, the Supreme Court’s decision in Apprendi v. New Jersey , 530 U.S. 466, 120 S. Ct. 2348, 2362-63 (2000), does notapply.-4-

Defendant’s motion to proceed on appeal without pre payment of costs and fees is granted, his application for a certificate of appealability is denied, and the appeal is dismissed.

Entered for the Court

John C. Porfilio Circuit Judge