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Tenth Circuit Denies Kenny Taylor Appeal

This document is an order from the United States Court of Appeals for the Tenth Circuit regarding Kenny Taylor's appeal of the denial of his motion to vacate, set aside, or correct his sentence. The district court had denied Taylor's motion as untimely, applying the ruling in United States v. Simmonds. The appellate court granted Taylor's request to proceed in forma pauperis but denied his request for a certificate of appealability, determining he had not made a substantial showing that the district court's decision denied him a constitutional right. The court then dismissed the appeal and denied as moot Taylor's request for appointment of counsel.

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21 views2 pages

Tenth Circuit Denies Kenny Taylor Appeal

This document is an order from the United States Court of Appeals for the Tenth Circuit regarding Kenny Taylor's appeal of the denial of his motion to vacate, set aside, or correct his sentence. The district court had denied Taylor's motion as untimely, applying the ruling in United States v. Simmonds. The appellate court granted Taylor's request to proceed in forma pauperis but denied his request for a certificate of appealability, determining he had not made a substantial showing that the district court's decision denied him a constitutional right. The court then dismissed the appeal and denied as moot Taylor's request for appointment of counsel.

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F I L E D

UNITED STATES COURT OF APPEALS


FOR THE TENTH CIRCUIT

United States Court of Appeals


Tenth Circuit

DEC 17 1998

PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,


Plaintiff-Appellee,
No. 98-6187
(D.C. No. CIV-97-1821-R)
(W.D. Okla.)

v.
KENNY TAYLOR,
Defendant-Appellant.

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.

This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

Petitioner Kenny Taylor seeks to appeal from the

district courts 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 petitioners 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. He also seeks to proceed in forma pauperis, and moves this
court to appoint him counsel on appeal.
After review of petitioners motion and supporting documents, we grant his
request to proceed on appeal in forma pauperis. However, after careful
consideration of petitioners arguments on appeal, we conclude that he has not
made a substantial showing that the
constitutional right.

district courts decision denied him a

See id. Accordingly, petitioners request for a certificate of

appealability is denied, and this appeal is dismissed. Petitioners request for


appointment of counsel is denied as moot. The mandate shall issue forthwith.

Entered for the Court

Wade Brorby
Circuit Judge

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