* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se eFed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered sub mitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 6 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff-Appellee, vs. KENNETH DALE BLACK, JR., Defendant-Appellant. No. 96-6355 (D.C. No. CIV-96-1463) (W.D. Okla.)

ORDER AND JUDGMENT *
Before BRORBY, EBEL, and KELLY, Circuit Judges. **
Mr. Black appeals from the summary dismissal of his 28 U.S.C. § 2255 motion to correct, vacate or set aside his guilty p lea. In April 1994, Mr. Black plead guilty to possession with intent to distribut e methamphetamine, 21 U.S.C. § 841(a)(1), and carrying of a firearm in connectio n with a drug trafficking offense, 18 U.S.C. § 924(c)(1). He was sentenced t o 81 months, 21 months on the- 2 -

drug count, 60 months on the firearm count, to run consecutively. He did not take a direct appeal, but now challenges his guilty pleaas involuntary and the product of ineffective assistance of counsel, and contends that his plea on the firearm count lacked a factual basis. Mr. Black contends that consequences of the plea we re unexplained, that he did not understand the charges nor what was happeni ng to him. He faults his attorney for letting the judge question him during the plea colloquy and obtain admissions concerning the firearms, and for not ale rting the judge that Mr. Black was in withdrawal, the antidepressant supplied by the jail having worn off. He argues that the plea resulted from extreme fear. H e further argues that the drugs found on his person were for personal use and that while it was suspected that he sold drugs, no evidence proves it. He also points out that the arresting officers were subsequently indicted for keeping money found on arrestees. He faults his lawyer for the incriminating statements made by oth ers contained in the presentence report. We have reviewed the transcript of the plea hearin g and are satisfied that the district court ascertained the voluntariness of the plea and the factual basis for it. Mr. Black has not overcome the strong presumpt ion of truthfulness attendant to his statements at the plea hearing. See Blackledge v. Allison , 431 U.S. 63, 73- 74 (1977). He admitted possession of 37.9 grams of methamphetamine. Tr.- 3 -

4/8/94 at 10. He also admitted that he possessed the firearms in connection with the methamphetamine because “there’s about four guy s that was supposed to try to rob us.” Id. at 11. These statements support the plea for poss ession with intent to distribute and for carrying a firearm in connect ion with a drug trafficking offense. Finally, Mr. Black has not established th at his counsel’s performance was deficient or that the claimed omissions prejudi ced his defense. See Strickland v. Washington , 466 U.S. 668, 687 (1984). To the contrary, the i ssues Mr. Black raises were largely addressed by counsel in fulfilling his responsibility to his client and the court. We reject Mr. Black’s argument, raised for the firs t time on appeal, that his conviction violates double jeopardy because he was punished when the arresting officers failed to account for the $140.00 on his p erson. An authorized forfeiture does not constitute punishment for double jeopardy purposes, see United States v. Ursery , 116 S. Ct. 2135, 2138 (1996), let alone an unauth orized forfeiture. Because Mr. Black has not made “a substantial showi ng of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), we D ENY his Application for a Certificate of Appealability and DISMISS the appeal

. Entered for the Court Paul J. Kelly, Jr. Circuit Judge