United States v. Evans

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This order and judgment is not binding precedent, except under the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The prior grant of COA is therefore withdrawn as improvidently granted.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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