United States v. Bernhardt

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 7 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 02-1260
v. (D.C. Nos. 01-S-344
and 96-CR-203-S)
ROBERT JAY BERNHARDT, (D. Colorado)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TACHA , Chief Judge, McWILLIAMS , Senior Circuit Judge, and
McKAY , Circuit Judge.
After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in 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This order and judgment is not binding precedent, except under the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. This 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.
Following a jury trial, 1 Mr. Bernhardt was convicted of conspiracy to
possess with intent to distribute methamphetamine, in violation of 21 U.S.C.
§§ 841(a)(1) & (b)(1)(A), 846 (count 1); possession and the attempted possession
with intent to distribute a controlled substance, and aiding and abetting, in
violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A), 18 U.S.C. § 2 (counts 2 and 9);
and using or carrying a firearm in connection with a drug trafficking offense, in
violation of 21 U.S.C. § 841(a)(1), 18 U.S.C. § 924(c) (counts 3 and 10).
We affirmed Mr. Bernhardt’s conviction on direct appeal. United States v.
Bernhardt, 198 F.3d 259 (10th Cir. 1999). He now seeks a certificate of
appealability (COA) to pursue his appeal of the district court’s denial of his
petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2255.
Determining that Mr. Bernhardt has not met the statutory requirements, we deny
his application and dismiss the appeal.
To be entitled to a COA, Petitioner must make “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). He can make this
showing by establishing that “reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different manner or
that the issues presented were adequate to deserve encouragement to proceed
1
In his brief, Mr. Bernhardt adopts the facts as set forth in our direct
review of his appeal, United States v. Bernhardt, 198 F.3d 259 (10th Cir. 1999).
We do the same.
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further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation omitted).
Mr. Bernhardt raises two arguments 2 in his COA brief: (1) the indictment
violated the Double Jeopardy Clause of the Fifth Amendment; and (2) Bernhardt’s
trial counsel was ineffective in violation of his Sixth Amendment rights. We
consider each contention in turn.
Mr. Bernhardt failed to raise his double jeopardy claims on direct review.
When considering a habeas petition, we are barred from considering claims that
were not raised on direct appeal, absent a showing of cause and prejudice, or a
miscarriage of justice. United States v. Allen, 16 F.3d 377, 378 (10th Cir. 1994).
Because Mr. Bernhardt has failed to make such a showing, his claims are
procedurally barred. Further, in reviewing Mr. Bernhardt’s argument, we find no
merit to his claim of a double jeopardy violation.
We also conclude that Mr. Bernhardt did not receive ineffective assistance
of counsel for substantially the reasons set forth by the district court. Mr.
Bernhardt failed to make the requisite showing of “prejudice,” as required by
Strickland v. Washington, 466 U.S. 668, 687 (1984).
2
Mr. Bernhardt raised a third argument in his Notice of Appeal in the
district court, under Apprendi v. New Jersey, 530 U.S. 466 (2000). Although his
COA brief in this court does not mention his Apprendi argument, the district court
properly noted that Apprendi claims may not be considered on collateral view.
United States v. Mora, 293 F.3d 1213, 1219 (10th Cir. 2002) (“Apprendi is not a
watershed decision and hence is not retroactively applicable to initial habeas
petitions.”).
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The application for a certificate of appealability is therefore DENIED.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Chief Circuit Judge
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