F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                     UNITED STATES COURT OF APPEALS                  SEP 27 2001
                            FOR THE TENTH CIRCUIT               PATRICK FISHER
                                                                          Clerk


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 01-6000
                                                    (D.C. No. 99-CV-487-T)
    PAUL EUGENE CHILTON,                                  (W.D. Okla.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before HENRY , PORFILIO , and MURPHY , 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(G). 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      This order and judgment is not binding precedent, except under the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.
       Paul Eugene Chilton appeals from the district court’s orders denying his

motion to vacate, set aside, or correct his sentence brought pursuant to 28 U.S.C.

§ 2255. Appellant was sentenced to 297 months in prison and five years’

supervised release following his conviction of various drug-related crimes. Our

jurisdiction over this appeal arises under 28 U.S.C. §§ 1291 and 2253. Under the

provisions of § 2253(c)(1)(B), appellant must obtain a certificate of appealability

before this court considers his appeal. The district court denied appellant’s

request for a certificate of appealability, and appellant has renewed his request

before this court. To obtain a certificate of appealability, appellant must make “a

substantial showing of the denial of a constitutional right.”   

Respondent has not filed a brief in this appeal.

       Appellant has also moved for leave to proceed before this court without

prepayment of costs or fees. He was granted leave by the district court, and that

determination carries over to his appeal here. Therefore his motion to proceed

without prepayment of costs or fees is denied as moot.

       Appellant presents three arguments on appeal, challenging both the drug

quantity on which he was sentenced and the validity of the search leading to the

drug seizure. He first contends that his trial counsel was unconstitutionally

ineffective because she relied on the drug quantities calculated by the

government’s expert chemist and failed to hire a chemist to make independent


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calculations. He points to the calculations of an expert chemist hired by his

counsel during habeas proceedings before the district court as evidence that the

drug quantities used in sentencing were excessive. Second, appellant argues that

counsel was ineffective because she failed to challenge the search leading to the

drug seizure as pretextual under the facts of the case. Third, appellant contends

that remand to the district court is required in light of intervening authority,

Apprendi v. New Jersey , 

(2000).

      After careful review of the record on appeal, together with appellant’s

arguments, and in light of the applicable law, we conclude that appellant has not

demonstrated his eligibility for a certificate of appealability. Therefore,

appellant’s motion for a certificate of appealability is DENIED and this appeal is

DISMISSED. The mandate shall issue forthwith.



                                                      Entered for the Court



                                                      John C. Porfilio
                                                      Circuit Judge




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