* This order and judgment is not binding precedent, e xcept under the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

### APR 10 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. PETER I. PHILIPS, also known as Emaraobebi Idaba, Defendant-Appellant. No. 97-6257 (W. District of Oklahoma) (D.C. No. 97-CV-745)

ORDER AND JUDGMENT *

Before BALDOCK , EBEL, and MURPHY , Circuit Judges.
After examining the briefs and appellate record, this 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.-2-

Peter I. Philips, proceeding pro se and in forma pauperis , seeks to appeal the district court’s denial of his motion brought p ursuant to 28 U.S.C. § 2255. Because Philips’ motion was filed after the effecti ve date of the Antiterrorism and Effective Death Penalty Act of 1996, Philips must o btain a certificate of appealability before he can appeal the denial of hi s § 2255 motion. 28 U.S.C. § 2253(c)(1)(B); United States v. Kunzman , 125 F.3d 1363, 1364 n.2 (10th Cir. 1997). Although Philips failed to file a request f or a certificate of appealability with this court, we will treat his appellate brief as a request for such a certificate. In his § 2255 petition, Philips asserted as follows : (1) his guilty plea was not voluntary but was, instead, the result of the U nited States’ actions in “blackmailing, threatening, pressuring, and intimid ating” him; and (2) his counsel was ineffective in failing to properly investigate the crime and inform him of the possible consequences of a guilty plea. The distri ct court rejected Philips’ contentions, noting that his conclusory allegations were clearly insufficient to demonstrate that he was prejudiced by the actions o f his attorney. Dist. Ct. Order at 3-4. The district court further noted that the record demonstrated that he was adequately informed about the nature and consequenc es of his guilty plea by both the plea agreement itself and by the district courtduring the plea colloquy. Id. at 3 n.4.-3-

Philips is entitled to a certificate of appealabili ty only if he can make “a substantial showing of the denial of a constitution al right.” 28 U.S.C. § 2253(c)(2). He can make such a showing by demonstr ating that the district court’s resolution of the issues set out above is d ebatable among jurists, that this court could resolve the issues differently, or thatthe questions presented deserve further proceedings. Barefoot v. Estelle , 463 U.S. 880, 893 & n.4 (1983). Upon de novo review of the parties briefs, the district court’s Order, and the entire record on appeal, this court concludes that Philips has failed to make a substantial showing of the denial of a constitutional right forsubstantially the same reasons set forth in the district court’s Order dated July 7, 1997. Accordingly, we DENY Philips a certificate of appealability and DISMISS the appeal. ENTERED FOR THE COURT:

Michael R. Murphy Circuit Judge