                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           FEB 6 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk


    UNITED STATES OF AMERICA,

                Plaintiff - Appellee,
                                                        No. 02-6120
    v.                                             D.C. Nos. 99-CV-102-M
                                                      and CR-97-17-M
    HAROLD EUGENE COMBS,                              (W.D. Oklahoma)

                Defendant - Appellant.


                             ORDER AND JUDGMENT           *




Before EBEL , BALDOCK , and LUCERO , 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      This order and judgment is not binding precedent, except under the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 Harold Eugene Combs       seeks a certificate of appealability (COA)

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

motion brought pursuant to 28 U.S.C. § 2255. We deny Mr. Combs’ application

and dismiss the appeal.

      To be entitled to a COA, Mr. Combs 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. Combs was charged along with four co- defendants in a twenty-two

count indictment . The jury found him guilty of conspiracy to possess with intent

to distribute and distribution of cocaine base, interstate transportation in aid of

racketeering, use of a telephone to further the conspiracy, and money laundering.




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He was sentenced to 360 months’ imprisonment and five years’ supervised

release.

      Mr. Combs filed an appeal in which he argued he was denied a fair trial

and deprived of due process due to perjured testimony from government

witnesses. This court affirmed his conviction. United States v. Combs, No.

97-6219, 1998 WL 17767 (10th Cir. Jan. 20, 1998).

      Mr. Combs filed this motion seeking relief under § 2255 in district court in

which he alleged he had received ineffective assistance of trial and appellate

counsel because trial counsel had failed to object to (1) cooperating witness

testimony, (2) jury instruction No. 30 on interdependence, and (3) his sentence

which exceeded the sentencing guideline range. He contended that appellate

counsel was ineffective because he had failed to raise those issues. Mr. Combs

then moved to amend his complaint to add several claims based on Apprendi v.

New Jersey, 530 U.S. 466 (2000) . The district court granted the motion, but

denied relief holding that Mr. Combs had failed to show ineffective assistance of

counsel and that Apprendi is not retroactive to habeas petitions.

      On appeal, Mr. Combs argues only that the district court erred in denying

his Apprendi claims. He maintains the trial court improperly imposed a sentence

beyond the statutory maximum and removed essential elements from the jury’s




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province because the jury was not instructed to determine the type and quantity

of drugs involved.

      This court has held that Apprendi is not retroactive to initial § 2255

motions. United States v. Mora, 293 F.3d 1213, 1219 (10th Cir.), cert. denied ,

123 U.S. 388 (2002). 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). Consequently, Mr. Combs

has failed to make a “substantial showing of the denial of a constitutional right”

and is not entitled to a COA. 28 U.S.C. § 2253(c)(2).

      We deny a COA and DISMISS this appeal. Mr. Combs’ motion to proceed

in forma pauperis is GRANTED. The mandate shall issue forthwith.



                                                    Entered for the Court



                                                    David M. Ebel
                                                    Circuit Judge




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