* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The 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 

### DEC 13 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Respondent,

v. TOMMIE L. JOHNSON, Defendant-Petitioner. No. 02-3040 (District of Kansas) (D.C. No. 01-CV-3061-WEB)

ORDER AND JUDGMENT *
BeforeKELLY , McKAY , and MURPHY , Circuit Judges.
After examining Appellant’s brief and the appellate record, this panel has determined unanimously that oral argument would notmaterially 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 ora l argument.-2-

This case is before the court on Tommie L. Johnson’s pro se request for a certificate of appealability (“COA”). Until Johnso n obtains a COA, he cannot appeal the district court’s denial of the motion to vacate, set aside, or correct sentence he brought pursuant to 28 U.S.C. § 2255. See 28 U.S.C. § 2253(c)(1)(b) (providing that a petitioner may not appeal the denial of a § 2255 motion unless he first obtains a COA). In 1999, Johnson was convicted of one count of pos session with intent to distribute cocaine base. His conviction was affirmed by this court. See United States v. Johnson , No. 99-3225, 2000 WL 505250 (10th Cir. April 27, 2000) (unpublished disposition). Thereafter, Johnson fil ed the instant § 2255 motion with the United States District Court for the Distr ict of Kansas. In the motion, Johnson alleged that his conviction and sentence are contrary to Apprendi v. New Jersey , 530 U.S. 466 (2000). He also asserted that his co unsel was ineffective for failing to raise the Apprendi issue. The district court denied Johnson’s § 2255 motion, concluding that Apprendi does not apply retroactively to cases on collateral review and that Johnson’s ineffective as sistance claim lacked merit because Johnson failed to make a credible showing that his counsel’s performance was deficient. Johnson did not raise an Apprendi -type claim in his direct appeal and this court has held that Apprendi is not retroactively applicable to initial habeas1 Johnson’s additional argument that his counsel’s fa ilure to file a petition

for a writ of certiorari with the Supreme Court con stitutes ineffective assistance was not presented to the district court. Consequently, we decline to address it. See McDonald v. Kinder-Morgan, Inc. , 287 F.3d 992, 999 (10th Cir. 2002) (“[A]bsent extraordinary circumstances, [this court ] will not consider arguments raised for the first time on appeal. This is true whether an appellant is attempting to raise a bald-faced new issue or a new theory that falls under the same general category as a previous argument.”(quotations and ci tation omitted)). We note, additionally, that Johnson has provided no support for this argument.
-3- petitions. See United States v. Mora , 293 F.3d 1213, 1218 (10th Cir. 2002). Consequently, Johnson’s Apprendi claims are foreclosed by circuit precedent. Likewise, Johnson’s argument that the failure to al lege a drug quantity in the indictment deprived the trial court of jurisdictionis foreclosed by Supreme Court precedent. See United States v. Cotton , 535 U.S. 625, 122 S. Ct. 1781, 1785 (2002). Johnson also asserts that his counsel was ineffecti ve for failing to raise the Apprendi issue either during his trial or on direct appeal. 1 To prevail on this issue, Johnson must demonstrate that his counsel’s performance fell below an objective standard of reasonableness and that he wa s prejudiced by counsel’s deficient performance. See Strickland v. Washington , 466 U.S. 668, 687-92 (1984). At the time of Johnson’s trial and his di rect appeal, this court’s jurisprudence was directly contrary to the holding in Apprendi
. See , e.g. , United States v. Reyes , 40 F.3d 1148, 1151 (10th Cir. 1994). Apprendi was decided after-4-

Johnson’s conviction was affirmed on direct appeal. This court has previously held that counsel’s failure to predict future devel opments in the law does not constitute constitutionally deficient performance. See United States v. GonzalesLerma , 71 F.3d 1537, 1541-42 (10th Cir. 1995) (“Clairvoy ance is not a required attribute of effective representation.”). Accordin gly, Johnson’s ineffective assistance claims fail because he has not demonstrated that his counsel’s performance was constitutionally deficient. Johnson is not entitled to a COA unless he can make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Johnson can make that showing by demonstrating that : (1) the issues raised are debatable among jurists, (2) a court could resolve the issues differently, or (3) that the questions presented deserve further proceedings. See Slack v. McDaniel , 529 U.S. 473, 483-84 (2000). Based on our review o f Johnson’s request for a COA, his appellate brief, the district court’s orde r, and the entire record before us, we conclude that the district court’s dispositi on of Johnson’s § 2255 motion is not deserving of further proceedings, debatable among jurists of reason, or subject to different resolution on appeal. Accordi ngly, Johnson has failed to make the required substantial showing of the denial of a constitutional right and-5-

is not entitled to a COA. See 28 U.S.C. § 2253(c)(1)(b). This court denies Johnson’s request for a COA and dismisses this appeal. ENTERED FOR THE COURT
Michael R. Murphy Circuit Judge