                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           MAY 7 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 00-3036
                                                    (D.C. No. 98-CV-3053)
    RONNIE R. MOCK,                                        (D. Kan.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before EBEL , ANDERSON , and KELLY , 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      This order and judgment is not binding precedent, except under the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.
      Petitioner Ronnie Mock seeks a certificate of appealability from the district

court’s denial of his petition for habeas corpus pursuant to 28 U.S.C. § 2255.

The parties are familiar with the facts and procedural background to this case,

so we need not recite them here.

      We may grant a certificate of appealability “only if the applicant has made

a substantial showing of a denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). After a careful review of the briefs, the record, and the district

court’s ruling, we decline to issue a certificate of appealability and dismiss

Mr. Mock’s appeal. The    district court wrote a lengthy, thorough, and

well-reasoned opinion. We agree with its analysis and ultimate decision to

deny habeas relief.

      The district court did not address one of two ineffective assistance of

counsel claims on which Mr. Mock seeks a certificate of appealability. Mr. Mock

alleges that his constitutional rights were violated when his trial lawyer failed to

object to the quantity of cocaine mentioned in the presentence report, a finding

relied upon by the district court to calculate his prison sentence. He mentioned

this claim only incidentally in his pro se petition, a passing reference without

supporting facts or argument. We need not consider whether Mr. Mock has

adequately preserved his claim, for after reviewing it on its merits we conclude

that he has not made the showing required of 28 U.S.C. § 2253(c)(2).


                                          -2-
       Additionally, Mr. Mock has raised for the first time on appeal a claim

arising under Apprendi v. New Jersey , 530 U.S. 466 (2000), which was decided

one week after the district court rejected his § 2255 petition. He alleges that the

district court’s post-conviction finding regarding drug quantity triggered

application of a statutory minimum sentence, and thus subjected him to a higher

range of penalties in violation of the rule announced in     Apprendi . He seeks

a certificate of appealability to pursue this claim.

       This court has not yet addressed whether     Apprendi is implicated by facts

triggering application of a statutory minimum sentence. Nor have we determined

whether Apprendi is retroactively available in an initial habeas petition.   See

Browning v. United States , 241 F.3d 1262, 1264 (10th Cir. 2001). Similarly,

we have not considered whether a failure to raise      Apprendi on direct appeal bars

habeas review under the rules governing procedural defaults. However, because

Mr. Mock did not raise any sort of challenge to the district court’s finding

regarding drug quantity   in his petition below, we decline to address it here.

See Smith v. Sec’y of N.M. Dep’t of Corr.    , 50 F.3d 801, 814 n.22 (10th Cir. 1995)

(noting that in the absence of extraordinary circumstances this court will not

consider issues raised for the first time on appeal).




                                            -3-
We DENY Mr. Mock’s application for COA and DISMISS the appeal.



                                       Entered for the Court



                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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