* This order and judgment is not binding precedent, e xcept under the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. 

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

### MAR 7 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. ROBERT JAY BERNHARDT,

Defendant - Appellant. No. 02-1260 (D.C. Nos. 01-S-344 and 96-CR-203-S) (D. Colorado)

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 wouldnot be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered sub mitted without oral argument.1 In his brief, Mr. Bernhardt adopts the facts as se t forth in our direct

review of his appeal, United States v. Bernhardt , 198 F.3d 259 (10th Cir. 1999). We do the same. -2- 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); possessionand the attempted possession with intent to distribute a controlled substance, a nd 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 ap peal. United States v. Bernhardt , 198 F.3d 259 (10th Cir. 1999). He now seeks a ce rtificate of appealability (COA) to pursue his appeal of the dis trict court’s denial of his petition for a writ of habeas corpus filed pursuantto 28 U.S.C. § 2255. Determining that Mr. Bernhardt has not met the stat utory requirements, we deny his application and dismiss the appeal. To be entitled to a COA, Petitioner must make “a su bstantial 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 co uld debate whether (or, for that matter, agree that) the petition should have been r esolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed2 Mr. Bernhardt raised a third argument in his Notic e 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 Appren di 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.”). -3- 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 Am endment; and (2) Bernhardt’s trial counsel was ineffective in violation of his S ixth Amendment rights. We consider each contention in turn. Mr. Bernhardt failed to raise his double jeopardy c laims on direct review. When considering a habeas petition, we are barred f rom 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 sho wing, 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).-4-

The application for a certificate of appealability is therefore DENIED. ENTERED FOR THE COURT,

Deanell Reece Tacha Chief Circuit Judge