                                                                            F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            OCT 30 2002
                             FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                 Clerk

    RICHARD SCHAUERMAN,

                 Petitioner - Appellant,

    v.                                                    No. 02-1090
                                                       D.C. No. 00-S-1774
    GARY NEET, Warden; ATTORNEY                          (D. Colorado)
    GENERAL FOR THE STATE OF
    COLORADO,

                 Respondents - Appellees.


                             ORDER AND JUDGMENT           *




Before BRISCOE , Circuit Judge, BRORBY , Senior Circuit Judge, and          HARTZ ,
Circuit Judge.




         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      This order and judgment is not binding precedent, except under the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 Richard Schauerman, a Colorado state inmate appearing      pro se ,

seeks a certificate of appealability (COA) to appeal the district court’s denial of

his habeas corpus petition filed pursuant to 28 U.S.C. § 2254.   See 28 U.S.C.

§ 2253(c)(1)(A) (providing that no appeal may be taken from the denial of

a § 2254 habeas petition unless the petitioner first obtains a COA). Because

petitioner has not demonstrated “a substantial showing of the denial of

a constitutional right,” this court denies his request and dismisses this appeal.

Id. § 2253(c)(2).

      Petitioner pled guilty in February 1989 to murder in the second degree,

Colo. Rev. Stat. § 18-3-103(1) (1989), and to having committed a crime of

violence subject to mandatory sentencing, Colo. Rev. Stat. § 16-11-309 (1989).

Pursuant to the enhanced sentencing requirements of § 16-11-309, petitioner was

sentenced to forty-eight years’ imprisonment–twice the maximum sentence for a

second-degree murder conviction–plus a period of parole. Petitioner filed a

motion for reconsideration of sentence, which was denied by the trial court. He

did not file a direct appeal.

      In 1992, petitioner filed a motion in state court to correct sentence, which

was denied. In October 1998, petitioner filed a motion seeking state

post-conviction relief under Colorado Rule of Criminal Procedure 35(c). The

motion was dismissed as time-barred, because petitioner filed it six years after the


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time for filing such motions had elapsed. The Colorado Court of Appeals affirmed

the denial, finding no justifiable excuse for his failure to file a timely Rule 35(c)

motion. The Colorado Supreme Court denied certiorari review. Petitioner then

filed his § 2254 petition.

       In his § 2254 petition, petitioner claims (1) his constitutional rights to a jury

trial and to due process were violated by the imposition of an enhanced sentence

for the commission of a violent crime under § 16-11-309, citing     Apprendi v. New

Jersey , 530 U.S. 466, 490 (2000) (holding that “[o]ther than the fact of a prior

conviction, any fact that increases the penalty of a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a reasonable

doubt.”); (2) his plea was not knowing and voluntary; and (3) based on      Apprendi ,

he received ineffective assistance of counsel at his plea with respect to the

sentencing enhancement.

       Adopting the magistrate judge’s report and recommendation, the district

court dismissed the petition. It dismissed petitioner’s second claim for failure to

exhaust his state court remedies because he failed to raise it in a timely Rule 35(c)

motion. It dismissed the first and third claims, both based on    Apprendi , because

petitioner pled guilty to having committed a crime of violence under § 16-11-309,

and there was no fact separate from the elements of the crime that increased his

penalty. Thus, the district court ruled petitioner had failed to state a constitutional


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claim under Apprendi . Furthermore, petitioner was advised he was facing a

possible forty-eight year sentence in conjunction with his guilty plea and did not

allege any facts suggesting he received ineffective assistance of counsel.

       Since the date of the district court’s order, this court has held that      Apprendi

is not retroactively applicable to initial habeas corpus petitions.       United States v.

Mora , 293 F.3d 1213, 1219 (10th Cir.),      cert. denied , 2002 WL 31013013 (U.S.

Oct. 15, 2002) (No. 02-6125). In light of       Mora , petitioner’s first and third claims,

based on Apprendi , are foreclosed. Further, the district court correctly ruled that

petitioner’s second claim was procedurally barred.

       Petitioner’s application for COA is DENIED and the appeal is DISMISSED.



                                                           Entered for the Court



                                                           Mary Beck Briscoe
                                                           Circuit Judge




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