* This order and judgment is not binding precedent, except under the doctrines of law of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. UNITED STATES COURT OF APPEALS Filed 10/22/96 TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. WILLIAM P. BAILEY,

Defendant - Appellant. No. 95-1382 (D. Ct. No. 95-B-1675) (D. Colo.)

ORDER AND JUDGMENT *
Before TACHA, BALDOCK, and BRISCOE, Circuit Judges.
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); 10th Cir. R. 34.1.9. The cause is therefore ordered sub mitted without oral argument. The petitioner in this matter pled guilty on Novemb er 6, 1990, to a two count Information charging him with offenses relate d to possession with intent to distribute controlled substances and possession of a firearm during and in relation- 2 -

to a drug trafficking offense. He was sentenced to six years imprisonment on December 19, 1990. Petitioner sought to withdraw h is guilty plea in the district court. His motion to withdraw the guilty plea was denied by the district court, and his conviction and sentence were affirmed by th is court. United States v. Bailey , No. 90-1385, 940 F.2d 1539 (10th Cir., Aug. 5, 19 91)(unpublished opinion). Just before he was sentenced in the fede ral criminal case, the State of Colorado began forfeiture proceedings in the state court and seized $926 in currency which was discovered at the time of petiti oner’s arrest. Petitioner Bailey filed this motion under 28 U.S.C. § 2255 on July 5, 1995, claiming that the civil forfeiture proceedings by the state resulted in his being subjected to double jeopardy because he had been punished both by the f ederal government and by the state government. On April 24, 1996, Congress enacted the Anti-Terror ism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, which alters the procedures, for habeas corpus appeals. The statute now requires that a federal prisoner appealing a denial of a § 2255 petition to obtain a certificate of appealability instead of a certificate of probable cause. 28 U.S.C. § 2253(c)(1)(b). Lennox v. Evans , 87 F.3d 431, 433 (10th Cir. 1996). We apply the new legislation to petitioner Bailey’s notice o f appeal and construe the notice of appeal as an application for a certificate of ap pealability. See Fed. R. App. P.- 3 -

22(b). Applying the certificate of appealability s tandards under 28 U.S.C. § 2253(c)(2) we conclude that petitioner Bailey has f ailed to make a substantial showing that is constitutional rights have been den ied. We do not reach the double jeopardy claim raised bypetitioner in this appeal because the argument is foreclosed by the re cent decision of the United States Supreme Court in United States v. Ursery , ___ U.S. ___, 116 S. Ct. 2135 (1996). In that case, the Supreme Court determinedthat in rem civil forfeiture actions do not constitute punishment for the purpos es of double jeopardy analysis nor are civil in rem procedures criminal in nature. Thus, under the ho lding in this case petitioner has failed to make a substantial sh owing that his constitutional rights have been denied. We DENY Bailey’s applicat ion for a certificate of appealability. The mandate shall issue forthwith. ENTERED FOR THE COURT,

Deanell Reece Tacha Circuit Judge