* This order and judgment is not binding precedent, e xcept under the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

### MAY 22 2002 

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

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. RONALD WILLIAM SWALLOW,

Defendant - Appellant. No. 01-6272 (D.C. Nos. 99-CV-556-M, 97-CR-181-M) (W.D. Oklahoma)

ORDER AND JUDGMENT *

Before SEYMOUR , PORFILIO , and BALDOCK , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. SeeFed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.-2-

Appellant Ronald William Swallow appeals from the d istrict court’s denial of his motion to vacate, set aside, or correct his sentence filed pursuant to 28 U.S.C. § 2255. The district court ruled that ap pellant’s only challenge to his sentence–an attack on the validity of part of a res titution order–was not a cognizable claim under § 2255 because the language of that statute limits relief “only to those prisoners who ‘claim[] the right to be released’ from custody.” Rec. Vol. I, doc. 32, at 4 (quoting § 2255). Appel lant now contends that this ruling is contrary to both published and unpublishe d decisions of this circuit. Aplt. Br. at 4. To proceed on appeal before this court, appellant must obtain a certificate of appealability (COA), see 28 U.S.C. § 2253(c)(1)(B). The district court den ied his motion for a COA, and he reurges his motion her e. A COA will not issue unless appellant makes “a substantial showing of th e denial of a constitutional right.” Id. § 2253(c)(2). He can make such a showing by demon strating that the issues he seeks to raise are debatable among jurist s of reason or deserving of further proceedings. See Slack v. McDaniel , 529 U.S. 473, 484 (2000). We conclude that appellant has not met the standard s for the issuance of a COA. First, neither his arguments challenging the district court’s interpretation of § 2255 nor his substantive challenge to the rest itution order are of constitutional dimension, which is required by the COA standards set forth in-3-

§ 2253(c)(2). See United States v. Gordon , 172 F.3d 753, 754 (10th Cir. 1999). Further, although there are no decisions by this co urt that address the availability of § 2255 to challenge a restitution order, all of the circuits that have addressed the issue agree that challenges to restitution may not be considered in § 2255 proceedings. See United States v. Kramer , 195 F.3d 1129, 1130 (9th Cir. 1999) (collecting cases). Therefore, appellant has not demonstrated that the issue is debatable among reasonable jurists, and he has not argued that it is deserving of further development. Appellant’s motion for a COA is DENIED and this app eal is DISMISSED.

Entered for the Court

John C. Porfilio Circuit Judge