                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           JUL 3 2002
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,                         No. 02-6027
 v.                                               (D.C. No. CIV-01-955-T,
                                                       CR-91–220-T)
 CHARLES W. MCGEE, JR.,                               (W.D. Oklahoma)

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before EBEL, LUCERO, and O’BRIEN, Circuit Judges.


      On August 6, 1992, Defendant-Appellant Charles W. McGee, Jr., pled

guilty to possessing with the intent to distribute eight ounces of cocaine base, in

violation of 21 U.S.C. § 841(a)(1). The United States District Court for the

Western District of Oklahoma subsequently sentenced Mr. McGee to 360 months




      *
        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)(2) and 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
in prison, a sentence we affirmed on direct appeal. See United States v. McGee, 7

F.3d 1496 (10th Cir. 1993).

      On June 22, 2001, Mr. McGee, pursuant to 28 U.S.C. § 2255, filed a habeas

corpus petition with the district court, arguing that his sentence should be vacated

in light of the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466

(2000). The district court denied Mr. McGee relief, but it did not address whether

Mr. McGee’s petition warranted a certificate of appealability (COA). See 28

U.S.C. § 2253(c). Under these circumstances, the district court is deemed to have

denied a COA, see Emergency General Order of October 1, 1996, and we construe

Mr. McGee’s notice of appeal as a renewed application for a COA. See United

States v. Gordon, 172 F.3d 753, 753-54 (10th Cir. 1999). Mr. McGee also filed a

motion with this court asking that he be allowed to proceed in forma pauperis

(IFP) on appeal.

      As he acknowledges in his pro se brief, Mr. McGee can only obtain relief

under Apprendi if we interpret that decision as announcing a new rule of

constitutional law that applies retroactively to initial habeas petitions. See

Teague v. Lane, 489 U.S. 288, 331 (1989). We recently explained, however, that

Apprendi “is not retroactively applicable to initial habeas petitions.” United

States v. Mora,—F.3d—, 2002 WL 1317126, at *4 (10th Cir. June 18, 2002).




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     Accordingly, we DENY Mr. McGee’s application for a COA and DISMISS

the appeal. We further DENY Mr. McGee’s request for IFP status.

                                   ENTERED FOR THE COURT


                                   David M. Ebel
                                   Circuit Judge




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