UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RICHARD JOHN INGRAM,

Defendant-Appellant.

No. 97-6248

(D.C. No. CIV-97-947-R)

(W.D. Okla.)

ORDER AND JUDGMENT*

Before BRORBY, BRISCOE, and LUCERO, Circuit Judges.

After examining the briefs and 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)(2); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Petitioner Richard John Ingram seeks to appeal 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 denied the § 2255 motion as untimely filed, applying United States v. Simmonds, 111 F.3d 737 (10th Cir. 1997). The district court also denied petitioner's request for a certificate of appealability, required by 28 U.S.C. § 2253 before this court can consider his appeal. Petitioner reurges his request before this court.

After careful consideration of petitioner's arguments on appeal, we conclude that he has not made a substantial showing that the district court's decision denied him a constitutional right. See id. Accordingly, petitioner's request for a certificate of appealability is denied, and this appeal is dismissed. The mandate shall issue forthwith.

Entered for the Court

Wade Brorby

Circuit Judge