UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.	No. 97-3282
KENNITH D. MOBERLY,

Defendant-Appellant.	(D.C. No. 92-10095-01)

(D. Kan.)

ORDER AND JUDGMENT*

Before BALDOCK, EBEL, and MURPHY, Circuit Judges.**

Defendant Kennith D. Moberly seeks a certificate of appealability to appeal the district court's decision denying his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence.1 We exercise jurisdiction pursuant to 28 U.S.C. §§ 2253 and 2255. Concluding Defendant has made no substantial showing of the denial of a constitutional right, we deny his application for a certificate of appealability and dismiss the appeal.

Defendant is an inmate at the Federal Correctional Institution in El Reno, Oklahoma where he is serving consecutive 60 month sentences for, inter alia, using or carrying a firearm during the commission of a felony in violation of 18 U.S.C. § 924(c). Subsequent to entering his guilty plea, the United States Supreme Court adopted a narrow construction of § 924(c)'s "use" prong in Bailey v. United States, 516 U.S. 137 (1995). Relying on Bailey, Defendant filed a motion pursuant to 28 U.S.C. § 2255 seeking to vacate his sentence on the grounds that the facts to which he pled guilty no longer amounted to a crime.

The district court's task of evaluating Defendant's § 2255 motion was hampered because no transcript of the plea hearing existed. Therefore, the district court conducted an evidentiary hearing, at which Defendant and several additional witnesses testified, to determine whether Defendant freely and voluntarily pled guilty to facts supporting a § 924(c) conviction. After considering the witnesses' testimony, facts within the presentence report to which Defendant did not object and the indictment, the district court concluded that Defendant did not meet his burden of proving that his plea was involuntary or that there was no factual basis for the plea. Accordingly, the district court denied Defendant's § 2255 motion.

Advised by his counsel that the district court's decision left no non-frivolous grounds for appeal, Defendant insisted on filing this appeal. Counsel, therefore, filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and requests that we allow him to withdraw. Responding to the Anders brief, Defendant argues that the district court erroneously found that he "carried a firearm in relation to a drug trafficking offense," and that the court's finding deprived him of his rights to due process and equal protection under the law.2

We have reviewed Defendant's application for a certificate of appealability, his brief, counsel's Anders brief, the district court's order, and the entire record before us. We conclude that Petitioner has not demonstrated that the district court's disposition of his § 2255 petition is debatable, reasonably subject to a different outcome on appeal, or otherwise deserving of further proceedings. See Barefoot v. Estelle, 463 U.S. 880, 893 & n. 4 (1983) (substantial showing of denial of constitutional right shown by demonstrating that: (1) issues raised are debatable among jurists, (2) an appellate court could resolve issues differently, or (3) the questions deserve further proceedings.). Accordingly, we DENY Petitioner's motion for a certificate of appealability and DISMISS his appeal. Counsel's motion to withdraw pursuant to Anders is GRANTED.

Entered for the Court,

Bobby R. Baldock

Circuit Judge