* This order and judgment is not binding precedent, except under the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

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, this panel has determined

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

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument. 
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Appellant Ronald William Swallow appeals from the district 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 appellant’s only challenge to his

sentence–an attack on the validity of part of a restitution 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). Appellant now contends that this

ruling is contrary to both published and unpublished decisions of this circuit.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 denied

his motion for a COA, and he reurges his motion here. A COA will not issue

unless appellant makes “a substantial showing of the denial of a constitutional

right.” Id. § 2253(c)(2). He can make such a showing by demonstrating that the

issues he seeks to raise are debatable among jurists 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 standards for the issuance of a

COA. First, neither his arguments challenging the district court’s interpretation

of § 2255 nor his substantive challenge to the restitution 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 court 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 appeal is DISMISSED. 

Entered for the Court

John C. Porfilio 

Circuit Judge