* This order and judgment is not binding precedent, e xcept under the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

### MAY 20 1999 

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

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. BENNIE WREN BOLTON, also known as Ray Wilson,

Defendant-Appellant. No. 98-5142 (D.C. No. 97-CV-401-E) (N.D. Okla.)

ORDER AND JUDGMENT *

Before PORFILIO , McKAY , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist 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.-2-

Defendant Bennie Wren Bolton appeals from the denia l of his motion under 28 U.S.C. § 2255 to vacate, set aside, or cor rect sentence by a person in federal custody. The district court denied relief on the merits, granted appellant leave to proceed in forma pauperis on appeal, and d enied him a certificate of appealability. We also deny appellant a certificat e of appealability, and dismiss the appeal. Appellant was found guilty on firearms charges. Hi s conviction and sentence were affirmed on appeal. To obtain a cert ificate of appealability, appellant must make “a substantial showing of the d enial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Appellant argues that his appellate counsel provided ineffective assistance because she did notargue that the district court: (1) constructively amended the indictment by correc ting the serial number on the firearm he was accused of possessing; (2) erred by allowing the government to inform the jury in its opening statement that he wa s previously convicted of armed robbery; and (3) violated 18 U.S.C. § 3161(c) (2) by not allowing him adequate time to prepare for trial. A claim of ineffective assistance of counsel presen ts a mixed question of law and fact which we review de novo. See Cooks v. Ward , 165 F.3d 1283, 1292 (10th Cir.1998). To demonstrate that his attorney provided ineffective assistance, appellant must show, first, that his attorney “made errors so serious that [she] was-3-

not functioning as the ‘counsel’ guaranteed [him] b y the Sixth Amendment.” Strickland v. Washington , 466 U.S. 668, 687 (1984). In addition, appellantmust demonstrate “that counsel's errors were so serious as to deprive [him] of a fair trial, a trial whose result is reliable.” Id. We have carefully reviewed appellant’s brief, the d istrict court’s order, and the record on appeal. The district court thoroughl y discussed appellant’s arguments in light of the evidence presented at tri al. We find no merit to appellant’s claims of error. Appellant’s application for a certificate of appeal ability is denied, and the appeal is DISMISSED. The mandate shall issue forth with.

Entered for the Court

Carlos F. Lucero Circuit Judge