                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          OCT 18 2002
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 02-3151
                                                D.C. Nos. 01-CV-3265-RDR
 v.
                                                 and 89-CR-40038-01-RDR
                                                        (D. Kansas)
 ROBERT J. SHEWMAKER, SR.,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before EBEL, LUCERO and HARTZ, Circuit Judges.



      Robert J. Shewmaker, Sr., filed a petition for habeas corpus pursuant to 28

U.S.C. § 2255 to vacate, set aside or correct his sentence. Shewmaker contends

that his sentence violates his rights as set forth in Apprendi v. New Jersey, 530

U.S. 466 (2000). Because the right established in Apprendi is not retroactively



      *
        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order and judgment is not binding precedent, except under the doctrines of law of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.
applicable to cases on collateral review, we DENY a certificate of appealability

and DISMISS this appeal.

      On March 13, 1990, Shewmaker pled guilty to various marijuana

conspiracy charges. (Aplt. Br. at 1.) At sentencing, the district court conducted

an evidentiary hearing to ascertain the amount of marijuana involved in the

conspiracy. United States v. Shewmaker, 936 F.2d 1124, 1129 (10th Cir. 1991).

Under a preponderance of the evidence standard, it determined the quantity to be

74,110 plants, placing the defendant’s base offense level at 34. Id. This

determination was affirmed on appeal by the Tenth Circuit. Id. On September

18, 1991, the district court sentenced Shewmaker to 240 months imprisonment.

(ROA, Doc. 398.)

      In his habeas petition, Shewmaker contends that the Supreme Court

announced a new right in Apprendi that is retroactively applicable to his case on

collateral review. He asserts that his sentence was illegal because the amount of

marijuana involved in the conspiracy was calculated by the district court under a

preponderance of the evidence standard, while Apprendi requires that a jury must

find beyond a reasonable doubt any facts that increase the penalty for a crime

beyond the statutory maximum. Shewmaker also asserts that his counsel was

ineffective for failing to challenge this aspect of the sentencing proceedings.




                                         -2-
      Applying the framework of Teague v. Lane, 489 U.S. 288 (1989), which

governs the applicability of new rules of constitutional law to claims made in

initial habeas petitions, the Tenth Circuit has recently held that “Apprendi is not a

watershed decision and hence is not retroactively applicable to initial habeas

petitions.” United States v. Mora, 293 F.3d 1213, 1219 (10th Cir. 2002); see also

United States v. Brown, __ F.3d __, 2002 WL 2027346, at *5 (5th Cir. Sept. 5,

2002); McCoy v. United States, 266 F.3d 1245, 1256-58 (11th Cir. 2001); United

States v. Sanders, 247 F.3d 139, 147-48 (4th Cir. 2001); United States v. Moss,

252 F.3d 993, 997-1000 (8th Cir. 2001); Jones v. Smith, 231 F.3d 1227, 1237-38

(9th Cir. 2000). Because the rule announced in Apprendi is not retroactively

applicable to cases on collateral review, Shewmaker’s petition must be

dismissed. 1

      Shewmaker’s claim of ineffective assistance of counsel is likewise barred

because it was not brought within one year of his final conviction, 28 U.S.C. §

2255(1), nor is it a right newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review. See Valenzuela v. United

States, 261 F.3d 694, 700 (7th Cir. 2001) (rejecting petitioner’s claim that his



      1
        Shewmaker relies on United States v. Jones, 235 F.3d 1231 (10th Cir.
2000), to support his argument. That case is inapplicable because Jones
challenged his conviction and sentence under Apprendi on direct appeal, not on
collateral review. Jones, 235 F.3d at 1235.

                                         -3-
counsel was ineffective because he failed to raise an Apprendi challenge to

petitioner’s sentence prior to the Supreme Court’s decision in Apprendi); Collins

v. United States, 2001 WL 699058, at *6 (D. Kan. June 11, 2001) (same).

      Because none of Shewmaker’s habeas claims can be collaterally reviewed,

we DENY a certificate of appealability and DISMISS this appeal. See 28 U.S.C.

§ 2253(c)(1); Fed. R. App. P. 22(b). 2


                                         ENTERED FOR THE COURT


                                         David M. Ebel
                                         Circuit Judge




      2
        Because we deny a certificate of appealability, Shewmaker’s arguments
that the district court improperly decided his Rule 59(e) and 60(b) motions are
moot.

                                          -4-
