                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          AUG 28 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk


    UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

    v.                                                   No. 01-3377
                                                 (D.C. Nos. 01-CV-3305-DES,
    DEJON MITCHELL,                                 97-CR-40013-02-DES)
                                                         (D. Kansas)
                Defendant - Appellant.


                             ORDER AND JUDGMENT           *




Before HENRY , ANDERSON , and HARTZ , 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      This order and judgment is not binding precedent, except under the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.
       Defendant Dejon Mitchell seeks a certificate of appealability (COA) from

this court in order to appeal the district court’s order denying the relief sought in

his motion filed under 28    U.S.C. § 2255. We deny Mr. Mitchell’s application and

dismiss the appeal.

       To be entitled to a COA, Mr. Mitchell must make a “substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). He can make this

showing by establishing that “reasonable jurists could debate whether (or, for that

matter, agree that) the petition should have been resolved in a different manner or

that the issues presented were adequate to deserve encouragement to proceed

further.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (internal quotation marks

omitted). We will grant relief if we determine that “the judgment was rendered

without jurisdiction, or that the sentence imposed was not authorized by law or

otherwise open to collateral attack, or that there has been such a denial or

infringement of the constitutional rights of the prisoner as to render the judgment

vulnerable to collateral attack.”   28 U.S.C. § 2255.

       Mr. Mitchell pleaded guilty to distribution of forty grams of crack cocaine

in violation of 21 U.S.C. § 841(a)(1). He was sentenced on March 30, 2000, to

108 months in prison. Judgment was entered April 10, 2000. Mr. Mitchell did

not appeal.




                                           -2-
       On June 27, 2001, Mr. Mitchell filed his motion in the United States

District Court for the Western District of New York.        Because the motion was

filed in the wrong court, it was transferred to the District of Kansas on July 24,

2001. The Kansas district court denied the motion without requesting a response

from the government, finding that Mr. Mitchell was entitled to no relief. On

appeal, Mr. Mitchell relies on Apprendi v. New Jersey, 530 U.S. 466 (2000) to

argue that (1) his conviction must be vacated because § 841 is unconstitutional

and (2) his sentence must be vacated. He also contends that his attorney’s failure

to challenge the validity of § 841 constituted ineffective assistance of counsel;

but because he did not raise this issue in district court, we do not consider it in

deciding whether to issue a certificate of appealability.     See Rhine v. Boone , 182

F.3d 1153, 1154 (10th Cir. 1999)      (issues raised for the first time on appeal will

ordinarily not be considered).

       We conclude that Mr. Mitchell cannot make the requisite showing to

warrant issuance of a COA. We have held that         Apprendi is “not retroactively

applicable to initial habeas petitions.”    United States v. Mora , 293 F.3d 1213,

1219 (10th Cir. 2002). Moreover, we have determined that         “§ 841 remains

constitutionally enforceable notwithstanding       Apprendi .” United States v.

Cernobyl , 255 F.3d 1215, 1219 (10th Cir. 2001).




                                             -3-
      Hence, Mr. Mitchell has failed to make a “substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). Reasonable jurists could not

debate whether his § 2255 “petition should have been resolved in a different

manner” or whether “the issues presented were adequate to deserve

encouragement to proceed further.”   Slack , 529 U.S. at 484 (internal quotation

marks omitted). We deny a COA and DISMISS this appeal.



                                                    Entered for the Court



                                                    Harris L Hartz
                                                    Circuit Judge




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