F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS DEC 22 1997 TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 97-2154 v. (D.C. No. CV-96-519 JP/JHG)

THOMAS TURNER, (D. New Mex.) Defendant - Appellant.

ORDER AND JUDGMENT*

Before ANDERSON, McKAY, and LUCERO, Circuit Judges.

After examining Appellant’s brief and the 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); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Appellant claims that his conviction was fundamentally defective because he was

allowed to plead guilty to conduct that was not a crime, in violation of his right to due

process. Mr. Turner appeals the district court’s denial of his Motion to Vacate, Set Aside,

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. or Correct Sentence pursuant to 28 U.S.C. § 2255, and the district court’s dismissal of his

action.

We grant Appellant’s motion for leave to proceed without prepayment of costs or

fees, and we grant Appellant a certificate of appealability. We affirm the judgment for the

reasons given in the magistrate judge’s Proposed Findings and Recommended

Disposition, as adopted and supplemented by the district court in its Order filed April 1,

1997.

AFFIRMED.

Entered for the Court

Monroe G. McKay Circuit Judge

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