*This order and judgment is not binding precedent, except under the doctrines of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.

F I L E D

United States Court of Appeals

Tenth Circuit

MAR 26 1997

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 96-3382

v. D. Kansas

HERMAN B. SLATER,

Defendant - Appellant.

(D.C. No. 96-3201-EEO) 

ORDER AND JUDGMENT*

Before ANDERSON, HENRY, and BRISCOE, 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); 10th Cir. R. 34.1.9. This cause is therefore ordered

submitted without oral argument.

Herman B. Slater appeals the district court’s denial of his pro se motion to vacate,

set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. He contends that the
1Slater filed his appeal after the effective date of the Antiterrorist and Effective

Death Penalty Act (“AEDPA”), 28 U.S.C. § 2253(c), and he applied for a certificate of

appealability as required by the AEDPA. However, he now contends that the AEDPA

does not apply to his appeal, since his original motion was filed before its effective date. 

We disagree. We have previously held that “the certificate of appealability provision

applies to pending § 2255 cases in which the notice of appeal is filed after the effective

date of the AEDPA.” United States v. Riddick, 104 F.3d 1239, 1241 (10th Cir. 1997). 

-2-

district court erred by: 1) denying him an evidentiary hearing on his double jeopardy

claim; 2) ruling that he was not entitled to discovery; and 3) ruling that he was not entitled

to a default judgment when the government failed to respond timely to his motion. For

the reasons stated below, we deny a certificate of appealability1 and dismiss the appeal. 

The district court thoroughly discussed the background and law relevant to Slater’s

§ 2255 claim that he was subjected to double jeopardy in violation of the Fifth

Amendment. R. Vol. 1, Tab 226; United States v. Slater, Nos. 90-20043-01, 96-3201-

EEO, 1996 WL 594055 (D. Kan. Sept. 17, 1996). The district court concluded that, even

if the complained of action did constitute a civil forfeiture, United States v. Ursery, 116 S.

Ct. 2135, 2146 (1996), forecloses Slater’s double jeopardy argument. The court also

found that Ursery does not announce a new rule of law whose retroactive application is

prohibited under Teague v. Lane, 489 U.S. 288, 301 (1989). We agree. United States v.

Emmons, ___ F.3d ___, No. 96-3093, 1997 WL 66158 (10th Cir. Feb. 18, 1997). 
2Slater also makes the conclusory statement that Ursery does not apply to his case,

which involves an in personam, rather than an in rem forfeiture. However, he cites no

factual or legal support for his contention that the alleged forfeiture of his property was in

personam. We do not consider such unsupported arguments. Brownlee v. Lear Siegler

Management Servs. Corp., 15 F.3d 976, 977-78 (10th Cir. 1994). 

-3-

Since an in rem civil forfeiture2

 does not constitute punishment under Ursery,

Slater was not entitled to either discovery or an evidentiary hearing on his double

jeopardy claim. Moreover, we find no merit to his argument that the court should have

entered a default judgment against the government due to its failure to respond timely. 

Pursuant to Rule 6.1, United States District Court District of Kansas, Rules of Practice

and Procedure, the government made a motion for an extension of time in which to

respond. The district court had discretion to grant the motion, and Slater has shown no

abuse of that discretion. Hernandez v. George, 793 F.2d 264, 266 (10th Cir. 1986).

APPLICATION FOR CERTIFICATE OF APPEALABILITY DENIED AND

APPEAL DISMISSED.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge