* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This 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.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The case is therefore ordered sub mitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 11 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. KERRY DEVIN O’BRYAN, Defendant - Appellant. No. 02-3243 D.C. No. 02-CV-3144-MLB and 96-CR-10076-MLB (D. Kansas)

ORDER AND JUDGMENT *

Before KELLY , McKAY , and MURPHY , Circuit Judges. **
Mr. O’Bryan seeks to appeal from the district court ’s denial of his 28 U.S.C. § 2255 motion. His convictions were affirme d on direct appeal, where he raised claims of selective prosecution and sentenci ng error. United States v. O’Bryan , No. 99-3017, 2001 WL 173678 (10th Cir. Feb. 22, 2 001). In his § 2255 motion, he contends that (1) the government failed to prove that the bank robbed- 2 -

in count 7 was FDIC insured thereby depriving the c ourt of jurisdiction, 18 U.S.C. § 2113(a), (2) because of this, he cannot be convic ted of use or carry of a firearm in count 8 in connection with that bank robbery, 18 U.S.C. § 924(c)(1), (3) the court was without jurisdiction to impose sentence o n counts 1, 3, 5, 7, and 8 of the indictment, (4) he received ineffective assistance of counsel on counts 6 and 8 based upon counsel’s failure to file for dismissal based upon selective prosecution. In order for this court to grant a certificate of appealability (COA), Mr. Willner must make a “substantial showing of the den ial of a constitutional right.” 28 U.S.C. § 2253(c)(2). He must demonstrate “that reasonable jurists could debate whether (or, for that matter, agree that) th e petition should have been resolved in a different manner or that the issues p resented were adequate to deserve encouragement to proceed further.” Slack v . McDaniel , 529 U.S. 473, 484 (2000) (quotations omitted). Where the distric t court denied a claim on procedural grounds, he must show that that jurists of reason would find the district court’s procedural ruling debatable, and that the underlying constitutional claims are likewise debatable. Id. at 484-85. The district court determined that a sufficiency of the evidence claim could not constitute a basis for § 2255 relief, relying upon Williams v. United States , 371 F.2d 536, 536 (10th Cir. 1967). While this is ordinarily true, a defendant may- 3 -

show cause and prejudice, or a fundamental miscarri age of justice to overcome the procedural bar of not having raised sufficiencyon direct appeal. See United States v. Frady , 456 U.S. 152, 167-68 (1982); Santoro v. United St ates , 187 F.3d 14, 16 (1st Cir. 1999); Wright v. United States , 139 F.3d 551, 553 (7th Cir. 1998). Here, Mr. O’Bryan’s sufficiency of the evidence cla ims are procedurally barred for failure to raise them on direct appeal, and he has not shown cause and prejudice, or a fundamental miscarriage of justice that would excuse that bar. As the district court noted, it is abundantly clear th at a bank teller could testify to the bank’s insured status. United States v. Bindley , 157 F.3d 1235, 1239 (10th Cir. 1998); see also United States v. Guerrero , 169 F.3d 933, 944 (5th Cir. 1999) (bank security officer testified bank is federally insured). With our addition, and after careful review of Mr. O’Bryan’s briefs and th e record, for substantially the reasons set forth in the district court’s order, we DENY a COA, and DISMISS the appeal.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge