                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           NOV 5 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk


    UNITED STATES OF AMERICA,

                Plaintiff - Appellee,
                                                         No. 01-6429
    v.                                            D.C. Nos. 01-CV-277-T and
                                                         98-CR-93-T
    REGINA ANN EVANS,                                  (W.D. Oklahoma)

                Defendant - Appellant.


                             ORDER AND JUDGMENT           *




Before KELLY , 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      This order and judgment is not binding precedent, except under the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.
       Petitioner appeals the denial of her 28 U.S.C. § 2255 motion to vacate, set

aside, or correct her sentence on various drug offenses. This court granted

petitioner’s application for a certificate of appealability (COA) on her      Apprendi

issue and the related claim that her attorney provided ineffective assistance of

counsel by failing to pursue the    Apprendi issue at trial and on appeal. Since the

grant of COA, this court has determined that       Apprendi “is not retroactively

applicable to initial habeas petitions.”   United States v. Mora, 293 F.3d 1213,

1219 (10th Cir.) (analyzing     Apprendi in the context of § 2255),    cert. denied ,

No. 02-6125, 2002 WL 31013013 (U.S. Oct. 15, 2002).

       The prior grant of COA is therefore withdrawn as improvidently granted.

Petitioner’s motion to proceed on appeal without prepayment of costs or fees is

GRANTED. We VACATE this court’s grant of COA and dismiss this appeal.



                                                         Entered for the Court



                                                         Paul J. Kelly, Jr.
                                                         Circuit Judge




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