                                                                                  F I L E D
                                                                           United States Court of Appeals
                                                                                   Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                                   APR 24 1997
                                     TENTH CIRCUIT
                                                                              PATRICK FISHER
                                                                                        Clerk

 UNITED STATES OF AMERICA,

        Plaintiff-Appellee,
 v.                                                            No. 96-6331
                                                        (D.C. No. CIV-96-305-C)
 JERRY L. GRIST,                                      (Western District of Oklahoma)

        Defendant-Appellant.




                                          ORDER


Before SEYMOUR, Chief Judge, PORFILIO, Circuit Judge, and MURPHY, Circuit
Judge.


       Jerry Lee Grist attempts to appeal from an order denying his petition for vacation

of sentence under 28 U.S.C. § 2255 on the grounds of double jeopardy. He contends after

his consent to a judicial forfeiture of his property he could not be convicted on the

substantive count upon which the forfeiture was predicated. Although he admits he did

not contest the forfeiture, he maintains his plea of guilty was barred by the double

jeopardy clause of the Fifth Amendment. We have previously held a person is not placed

in jeopardy by a judicial forfeiture unless he contests it in the district court. United States

v. Hardwell , 80 F.3d 1471, 1485, (10th Cir. 1996); United States v. German, 76 F.3d

315, 318 (10th Cir. 1996).
       Mr. Grist also argues he was denied effective assistance of counsel because his

attorney did not raise the double jeopardy issue prior to the entry of his guilty plea, nor

did he present the issue on direct appeal. Of course, because the issue was not available,

failure to raise it cannot constitute denial of effective assistance.

       Thus, Mr. Grist, having failed to preserve the double jeopardy issue, has failed to

raise justiciable questions in this court. Id. The certificate of appealability is DENIED

and the appeal is DISMISSED. 28 U.S.C. § 2253(c)(2); Lennox v. Evans, 87 F.3d 431

(10th Cir. 1996). The previous orders entered for the payment of a filing fee are

VACATED. United States v. Simmonds, ___ F.3d ___, No. 96-3287, 1997 WL 177560

(10th Cir. Kan. Apr. 14, 1997).


                                            ENTERED FOR THE COURT



                                            John C. Porfilio
                                            Circuit Judge




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