United States of America, Plaintiff-appellee, v. Eliseo Aragon-pando, Defendant-appellant, 986 F.2d 1430 (10th Cir. 1993)

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); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.

Eliseo Aragon-Pando appeals from the denial of his motion for relief under 28 U.S.C. § 2255. He contends he was denied effective assistance of counsel and that the evidence produced at trial was insufficient to convict him. We affirm.

From the outset, we note that it has been established for some time in this Circuit that 28 U.S.C. § 2255 is not a substitute for appeal, and a prisoner cannot use it as a vehicle to challenge the sufficiency of the evidence used to convict him. Payton v. United States, 436 F.2d 575 (10th Cir. 1970); Williams v. United States, 371 F.2d 536 (10th Cir. 1967); Carrillo v. United States, 332 F.2d 202 (10th Cir. 1964); Curry v. United States, 292 F.2d 576 (10th Cir. 1961). We will not consider that issue in this appeal.

We have examined the briefs and the district court's order of dismissal on the question of the effective assistance of counsel. Our review discloses the court committed no error in denying the relief sought on that ground; therefore, we adopt the court's reasoning. The mandate shall issue forthwith.

AFFIRMED.