*This order and judgment is not binding precedent, except under the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.

F I L E D

United States Court of Appeals

Tenth Circuit

APR 4 2003

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BYRON LEE KING,

Defendant-Appellant.

No. 02-4079

(D.C. No. 01-CV-78-J)

(D. Utah)

 

ORDER AND JUDGMENT*

Before TACHA, Chief Circuit Judge, HOLLOWAY and McKAY, Circuit

Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f). The case is therefore submitted without

oral argument.

This is a 28 U.S.C. § 2255 prisoner appeal. Mr. King pled guilty to one

count of possession of methamphetamine with intent to distribute in violation of
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21 U.S.C. § 841(a)(1). Mr. King was sentenced to the statutory minimum of 120

months of imprisonment. Mr. King did not appeal. 

In his § 2255 motion, Mr. King requested that the court vacate his sentence

based on claims that (1) the indictment failed to state the type of

methamphetamine (injectable versus non-injectable), (2) his sentence exceeded

the statutory maximum, and (3) the court lacked jurisdiction to sentence him. The

district court found no merit in Mr. King’s substantive arguments, but did

discover an error in his sentence. The district court granted the § 2255 motion

and ordered Mr. King’s sentence to be reduced to 96 months; it denied the

remainder of the motion. Finding no merit in any of Mr. King’s arguments, the

district court declined to grant him a certificate of appealability. Petitioner then

applied to this court for a certificate of appealability. 

In order for this court to grant a certificate of appealability, Petitioner must

make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). To do so, Petitioner must demonstrate “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. McDaniel, 529 U.S. 473,

484 (2000) (quotations omitted).

We have carefully reviewed the briefs, the district court’s disposition, and
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the record on appeal. Nothing in the facts, the record on appeal, or the briefs

raises an issue which meets our standards for the grant of a certificate of

appealability. We conclude that for substantially the same reasons as set forth by

the district court in its Orders of April 30 and July 31, 2002, we cannot say “that

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

petition should have been resolved in a different manner.” Id. 

We DENY Petitioner’s request for a certificate of appealability and

DISMISS the appeal.

Entered for the Court

Monroe G. McKay

Circuit Judge