UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JAMES B. KIMBALL,

Defendant-Appellant.

No. 97-3069

(D.C. No. 96-CV-3528)

(D. Kan.)

ORDER AND JUDGMENT*

Before PORFILIO, KELLY, and HENRY, Circuit Judges.

After examining appellant's brief and the appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Defendant appeals from a district court order denying his motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255. Because the motion was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, our review is conditioned upon the issuance of a certificate of appealability pursuant to 28 U.S.C. § 2253. See United States v. Kunzman, 125 F.3d 1363, 1364 n.2 (10th Cir. 1997).

Based upon our review, we conclude that defendant has not "made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Therefore, a certificate of appealability is DENIED, and the appeal is DISMISSED.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge