* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral 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 

### FEB 3 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LLOYD DUANE SHEPHARD, Defendant-Appellant,

v. UNITED STATES OF AMERICA, Plaintiff-Appellee. No. 97-3256 (District of Kansas) (D.C. No. 94-CR-10046)

ORDER AND JUDGMENT *

Before BALDOCK , EBEL, and MURPHY , 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 ause is therefore ordered submitted without oral argument. This case is before the court on petitioner Lloyd D . Shepard’s motion for a certificate of appealability brought pursuant to 28 U.S.C. § 2253(c)(1)(B).-2-

Shepard requests the certificate so that he can app eal the district court’s denial of his 28 U.S.C. § 2255 motion. Because Shepard has f ailed to make “a substantial showing of the denial of a constitutional right,” w e deny the request for a certificate of appealability and dismiss the appeal

. Shepard filed a motion to vacate or set aside his s entence pursuant to 28 U.S.C. § 2255 on April 23, 1997. As grounds for th e motion, Shepard alleged that his attorney had been constitutionally ineffec tive in numerous particulars and that his guilty plea was not knowing and voluntary. The district court denied the § 2255 motion in a thorough and well-reasoned memor andum and order on July 3. After the district court denied Shepard a certificate of appealability, Shepard filed a motion for a certificate in this court. In his m otion for a certificate of appealability before this court, Shepard abandoned many of the issues raised below and limited his issues on appeal to the follo wing: (1) his counsel erroneously informed him that he could not appeal h is conviction; and (2) his plea was not knowing and voluntary because he entered th e plea based solely on the government’s promise to drop and 18 U.S.C. § 924(c) weapons charge, a charge Shepard contends the government could not prove aft er the Supreme Court’s decision in United States v. Bailey , 116 S. Ct. 501 (1995). The district court rejected Shepard’s claim of inef fective assistance of counsel on the following grounds:-3-

In accordance with the court’s directive to respondto the allegations of ineffectiveness, defense counsel has submitted c ertain materials, including correspondence that he sent to the defend ant. One such letter shows that counsel advised the defendant that he believed there were no grounds for a valid appeal and that any app eal would likely be unsuccessful. He expressly informed the defendant, however, that “you have the right to file an appeal” and that it had to be filed within ten days of entry of judgment. Additionally , the transcript of the sentencing hearing in this case shows that the court informed defendant that he had the right to appeal the sente nce, subject to the provisions of 18 U.S.C. § 3742. Thus, the record s hows that defendant was advised of his right to appeal. As to Shepard’s claim that his plea was not knowing and voluntary, the district court noted that Shepard does not dispute that at the time of the plea hearing he fully understood the nature of the charges and unde rstood the consequences of pleading guilty to the reduced charges in the super seding indictment. Furthermore, Shepard does not dispute that he commi tted the acts set out in the superseding indictment and no threats or promises w ere made to get him to enter a plea of guilty. Finally, the Supreme Court had rej ected arguments similar to those advanced by Shepard in Brady v. United States , 397 U.S. 742 (1970). This court has reviewed de novo Shepard’s motion for a certificate of probable cause and brief on appeal, the district co urt’s memorandum order dated July 3, 1997, and the entire record on appeal. Bas ed on that review, we conclude that the district court’s resolution of the issues advanced by Shepard is not debatable among jurists of reason or subject to res olution by courts in a different

manner. Barefoot v. Estelle , 463 U.S. 893 (1983). Accordingly, Shepard has no t-4-

made a substantial showing of the denial of a const itutional right and is thus not entitled to a certificate of appealability. 28 U.S .C. § 2253(c). Shepard’s motion for a certificate of appealabilityis DENIED and the case is DISMISSED

. ENTERED FOR THE COURT:

Michael R. Murphy Circuit Judge