*This order and judgment is not binding precedent, except under the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 5 2002

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff - Appellee, No. 01-2245

v. (D.C. Nos. CIV-00-1782 JP/KBM,

CR-97-227-JP)

ROQUE DIAZ, (D. New Mexico)

Defendant - Appellant.

 

ORDER AND JUDGMENT*

Before KELLY, McKAY, and MURPHY, Circuit Judges.

After examining Appellant’s brief and the 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.

Defendant appeals the dismissal of his pro se 28 U.S.C. § 2255 appeal by

the United States District Court for the District of New Mexico. He challenges

that dismissal on four grounds. 
-2-

Defendant first claims that his sentence violates the principles set forth by

the Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000). We have yet

to determine whether Apprendi applies to initial habeas petitions, nor need we

address that issue here. See Browning v. United States, 241 F.3d 1262, 1264

(10th Cir. 2001). Apprendi holds that “any fact that increases the penalty for a

crime beyond the prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490. The jury found

Defendant guilty of possession with intent to distribute 500 grams or more of a

substance containing a detectable amount of cocaine. Rec. at 6. Title 21 U.S.C. §

841(b)(1)(C), which applies to any attempt to possess with the intent to distribute

regardless of the amount of cocaine, sets the maximum period of imprisonment at

twenty years. Because Defendant’s ten-year sentence falls well within the

maximum authorized by law without a jury finding of more than a trace of

cocaine, his sentence does not violate Apprendi.

Defendant’s second and third challenges address alleged deficiencies in

trial counsel’s representation. The district court adopted the magistrate judge’s

well written recommendation regarding these two claims. We agree with the

district court that these claims are without merit for the same reasons set forth in

the magistrate judge’s recommendation.
-3-

Finally, for the first time on appeal, Defendant claims that his due process

rights were violated when his habeas petition was assigned to a judge that did not

preside over Defendant’s trial or sentencing. Rule 4(a) of the Rules Governing

Section 2255 Proceedings requires the habeas petition to be “presented promptly

to the judge of the district court who presided at the movant’s trial and sentenced

him, or, if the judge who imposed sentence was not the trial judge, then it shall go

to the judge who was in charge of that part of the proceeding being attacked by

the movant.” We need not consider Defendant’s novel argument for two reasons. 

First, there is nothing in the record indicating that Defendant objected in the

district court to the assignment of his habeas petition to a judge that did not

preside over his trial or sentencing. Second, we generally do not address

arguments raised for the first time on appeal. See Pierce v. Shorty Small’s of

Branson, Inc., 137 F.3d 1190, 1192 (10th Cir. 1998). Furthermore, Rule 4

specifically allows the petition to be presented to another judge “in accordance

with the procedure of the court for the assignment of its business” if the trial or

sentencing judge is unavailable. Fed. R. Sec. 2255 P. 4. 

We DENY Defendant’s Application for Certificate of Appealability. We

GRANT Defendant’s motion to proceed in forma pauperis. We AFFIRM the

district court’s denial of Defendant’s “Motion Pursuant to 28 U.S.C. § 2255 to 
-4-

Vacate, Set Aside or Correct Sentence by a Person in Federal Custody.” 

Entered for the Court

Monroe G. McKay

Circuit Judge