*This order and judgment is not binding precedent, except under the doctrines of law of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 would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.

The petitioner in this matter pled guilty on November 6, 1990, to a two

count Information charging him with offenses related 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 his 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 this court. United States v.

Bailey, No. 90-1385, 940 F.2d 1539 (10th Cir., Aug. 5, 1991)(unpublished

opinion). Just before he was sentenced in the federal 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 petitioner’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 federal government and by the

state government.

On April 24, 1996, Congress enacted the Anti-Terrorism 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 of appeal and construe the notice

of appeal as an application for a certificate of appealability. See Fed. R. App. P.
- 3 -

22(b). Applying the certificate of appealability standards under 28 U.S.C. §

2253(c)(2) we conclude that petitioner Bailey has failed to make a substantial

showing that is constitutional rights have been denied.

We do not reach the double jeopardy claim raised by petitioner in this

appeal because the argument is foreclosed by the recent 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 determined that in rem civil forfeiture

actions do not constitute punishment for the purposes of double jeopardy analysis

nor are civil in rem procedures criminal in nature. Thus, under the holding in this

case petitioner has failed to make a substantial showing that his constitutional

rights have been denied. We DENY Bailey’s application for a certificate of

appealability.

The mandate shall issue forthwith.

ENTERED FOR THE COURT,

Deanell Reece Tacha

Circuit Judge