United States v. Evans

49 F. App'x 887

Opinion

ORDER AND JUDGMENT *

PAUL KELLY, JR., 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.

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, U.S. -, 123 S.Ct. 388, — L.Ed.3d -(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The prior grant of COA is therefore withdrawn as improvidently granted.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.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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.