F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                               FEB 3 2003
                                      TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                         No. 02-1289
                                                         D.C. No. 02-B-1025
 ANTHONY BURL SMITH, also known                           and 96-CR-306-B
 as Troy Lee Jackson and Kevin Chowee                      (D. Colorado)
 Watson,

              Defendant - Appellant.


                             ORDER AND JUDGMENT*


Before SEYMOUR, HENRY, and BRISCOE, 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.

      Defendant Anthony Burl Smith, a federal prisoner appearing pro se, seeks a



      *
        This order and judgment is not binding precedent, except under the doctrines of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.
certificate of appealability (COA) to appeal the district court’s dismissal of his 28 U.S.C.

§ 2255 motion to vacate, set aside, or correct sentence. We deny the request for a COA

and dismiss the appeal. See 28 U.S.C. § 2253(c) (indicating “appeal may not be taken”

without a COA).

       In 1996, Smith pled guilty to one count of possession with intent to distribute

cocaine, in violation of 18 U.S.C. § 841(a)(1) and (b)(1)(B), and was sentenced to 121

months in prison. Judgment was entered on December 13, 1996, and Smith did not file a

direct appeal. On May 30, 2002, Smith filed his § 2255 motion, asserting his federal

sentence was improperly enhanced on the basis of a 1989 conviction for violating a

Denver ordinance prohibiting the carrying of a concealed weapon. Smith pointed to a

Colorado statute, Colo. Rev. Stat. § 18-12-105.6, enacted August 2, 2000, limiting the

ability of local governments within Colorado to enact or enforce certain local ordinances

pertaining to the carrying of firearms in private vehicles. The district court dismissed

Smith's motion as untimely. In doing so, the court accepted Smith’s assertion that he did

not receive a copy of the Colorado statute until May 1, 2002, but concluded “the existence

of th[e] statute [wa]s a fact that could have been discovered through the exercise of due

diligence in 2000.” ROA, Doc. 34 at 3. Further, the court noted that “Smith admit[ted]

that his attorney actually informed him of the existence of the statute in April 2001 when

his attorney filed a postconviction motion in state court seeking to overturn the 1989

conviction.” 

court concluded that “Smith had actual knowledge of the


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existence of the statute . . . more than one year before the § 2255 motion was filed.” 

court denied a COA and Smith has renewed his application with this court.

       Where, as here, “the district court denies a habeas petition on procedural grounds

without reaching the prisoner’s underlying constitutional claim,” the prisoner’s

entitlement to a COA hinges on his ability to show “that jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a constitutional right

and . . . whether the district court was correct in its procedural ruling.” Slack v.

McDaniel, 

, 484 (2000). After reviewing the record, we are not persuaded

that Smith has stated a valid claim of the denial of a constitutional right. Accordingly, we

need not examine the district court’s procedural ruling and Smith’s related arguments that

equitable tolling should apply.

       If . . . a prior [state] conviction used to enhance a federal sentence is no longer
       open to direct or collateral attack in its own right because the defendant failed to
       pursue those remedies while they were available (or because the defendant did so
       unsuccessfully), then that defendant is without recourse. The presumption of
       validity that attached to the prior conviction at the time of sentencing is conclusive,
       and the defendant may not collaterally attack his prior conviction through a motion
       under § 2255.

Daniels v. United States, 

, 382 (2001). At the time of Smith’s federal

sentencing, his 1989 conviction for carrying a concealed weapon was presumptively

valid. Although the record indicates that, following enactment of Colo. Rev. Stat. § 18-

12-105.6, Smith attempted to collaterally attack the 1989 conviction in Colorado state




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court, there is no indication in the record that he did so successfully.1 Thus, “[t]he

presumption of validity that attached” to the 1989 “conviction at the time of sentencing is

conclusive,” and Smith “may not collaterally attack” that “conviction through a motion

under § 2255.” 

.

       The application for a COA is DENIED and the appeal is DISMISSED. Smith’s

request for leave to proceed on appeal in forma pauperis is DENIED. The mandate shall

issue forthwith.

                                                   Entered for the Court

                                                   Mary Beck Briscoe
                                                   Circuit Judge




       1
         We note, in passing, that the Colorado Court of Appeals has interpreted Colo.
Rev. Stat. § 18-12-105.6 as simply “limit[ing], not eliminat[ing], local ordinances
regulating the carrying of weapons in private vehicles.” Trinen v. City & County of
Denver, 

, 760 (Colo. Ct. App. 2002).

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