In the

United States Court of Appeals

For the Seventh Circuit

No. 99-2921

Royce L. Garrott,

Applicant,

v.

United States of America,

Respondent.

Application for a Certificate of Appealability to

Appeal from the United States District Court

for the Southern District of Illinois.

No. 98-CV-4320-JPG--J. Phil Gilbert, Judge.

Submitted December 13, 2000--Decided January

30, 2001

 Before Flaum, Chief Judge, and Easterbrook, Circuit

Judge.

 Per Curiam. The Supreme Court remanded this case

to us for consideration in light of Slack v.

McDaniel, 120 S. Ct. 1595 (2000), and the parties

have filed their statements under Circuit Rule

54.

 Garrott’s collateral attack under 28 U.S.C.

sec.2255 was dismissed by the district court as

untimely. That court concluded that a judgment

becomes "final" in a criminal case, and the year

within which to commence collateral proceedings

commences, when the court of appeals issues its

mandate. Relying on Gendron v. United States, 154

F.3d 672 (7th Cir. 1988), the district court

rejected Garrott’s argument that a judgment

becomes "final" only when the time to seek

certiorari expires. Under Gendron, when no

request for review is presented to the Supreme

Court, the conclusion of proceedings in the court

of appeals marks finality under sec.2255

para.6(1). Last January we denied Garrott’s

request for a certificate of appealability.

Although the order does not explain our

reasoning, we deemed two considerations

conclusive: First, Gendron establishes a

principle that forecloses Garrott’s position;

second, an appellate argument that seeks only the
resolution of a statutory issue does not present

"substantial showing of the denial of a

constitutional right" (28 U.S.C. sec.2253(c)(2),

emphasis added), and without a substantial

constitutional claim a certificate of

appealability may not issue.

 Responding to Garrott’s petition for certiorari,

the Solicitor General supported Garrott’s

argument that a conviction does not become

"final" until the time available to seek review

by certiorari has expired. The Solicitor

General’s memorandum observed, however, that

given the language of sec.2253 and the holding of

Slack, a certificate of appealability may not be

issued to consider a statutory question

inisolation--though Slack added that if the

petitioner presents a substantial issue of

constitutional law, then a substantial statutory

issue may be appended to a certificate

ofappealability. 120 S. Ct. at 1604; see also

Owens v. Boyd, No. 00-1521 (7th Cir. Dec. 19,

2000). Because Garrott had not endeavored to

present a constitutional claim on appeal, the

Solicitor General reasoned that our order denying

a certificate of appealability was justifiable

even though, in the Solicitor General’s view,

Garrott’s statutory argument about the meaning of

"final" presents a substantial ground for

reversal.

 The Supreme Court’s remand invites us to

consider whether Garrott has a substantial

constitutional question that under Slack could

warrant the issuance of a certificate of

appealability. We are therefore more than a

little surprised that the memorandum the United

States Attorney filed in this court on remand

ignores that subject and addresses only the

statutory subject--and then only by reference to

the Solicitor General’s memorandum in the Supreme

Court. This is useless to us; we are well aware

that the statutory issue could be deemed

"substantial." The subject has occasioned a

conflict among the circuits that the Solicitor

General’s memorandum discusses. (Our court has

recently extended rather than retreated from

Gendron. See Gutierrez v. Schomig, 233 F.3d 490

(7th Cir. 2000). We think, however, that an issue

may be deemed "substantial" if other courts of

appeals disagree with this circuit’s approach.)

Nonetheless, a debatable question of statutory

interpretation is not enough to support a

certificate of appealability. It would have

helped us to receive the views of the United

States on the question the Supreme Court directed

us to address.

 Garrott, whose application for a certificate of

appealability last time around dealt only with
sec.2255 para.6(2), and therefore was doomed

under sec.2253(c)(2) and the holding of Slack,

has at least tried to address the question

covered by the Supreme Court’s order. But his

application, although prepared by counsel, does

not demonstrate that any constitutional issue

presented to the district court, and thus

properly preserved for appeal, is substantial.

The statement Garrott has filed lists 11 issues.

None of these is developed, however, and it is

therefore impossible to say that any is

substantial. Garrott’s first issue, for example,

reads: "The Petitioner’s sec. 851 enhancement was

unconstitutional and illegal." That’s the entire

presentation: no facts, no legal analysis,

nothing beyond the bald assertion. The other 10

questions are similarly shy of detail. For

example, one of the 11 issues reads: "The

Petitioner was denied his Sixth Amendment right

to an impartial jury, as there were no black

persons in the jury pool." But it has long been

established that the Constitution does not

require racial balance on juries. It forbids

devices that divert blacks (and other minorities)

away from jury service, but Garrott does not

contend that any improper device was used to

filter blacks from the venire.

 Instead of attempting to demonstrate that any

of the 11 issues presented to the district court

supports a certificate under the approach of

Slack, Garrott has presented a lengthy argument

based on Apprendi v. New Jersey, 120 S. Ct. 2348

(2000). But the Supreme Court did not instruct us

to consider Apprendi on remand, perhaps because

no argument under Apprendi (or its predecessor

Jones v. United States, 526 U.S. 227 (1999)) had

been presented to the district court--either at

the time of Garrott’s original sentencing, or in

the motion under sec.2255--or to the Supreme

Court itself.

 Let us assume, however, that arguments based on

Apprendi are proper means to take advantage of

sec.2253(b)(2) and Slack. In order to present

such a claim for the first time in this

collateral proceeding Garrott would have to

establish both "cause" and "prejudice." See

Bousley v. United States, 523 U.S. 614, 621-24

(1998); Engel v. Isaac, 456 U.S. 107, 130 n.35

(1982). His Rule 54 statement does not attempt to

do this. Both are steep hurdles, "cause" because

Bousley holds that the novelty of a legal rule is

not "cause" (no external impediment prevented

Garrott from making an Apprendi-like argument at

the time of his sentencing), and "prejudice"

because to show harm Garrott would have to

establish that no reasonable jury could have

found the quantity of drugs necessary to support

his sentence.
 The lack of any reasonable legal basis for a

claim may constitute "cause," see Reed v. Ross,

468 U.S. 1, 16 (1984), but the foundation for

Apprendi was laid long before 1992. Other

defendants began making Apprendi-like arguments

soon after the Sentencing Guidelines came into

being, and in McMillan v. Pennsylvania, 477 U.S.

79 (1986), the Court addressed on the merits an

argument along similar lines. Garrott could have

invoked the themes in McMillan, and for that

matter In re Winship, 397 U.S. 358 (1970), just

as the Justices did in Apprendi. As for

prejudice, in the sense of effect on the outcome:

that’s a hard showing to make even on a direct

appeal, where the defendant can take advantage of

the more lenient "plain error" standard. See

United States v. Nance, No. 00-1836 (7th Cir.

Dec. 29, 2000). Garrott was sentenced to 262

months’ imprisonment, only 22 more than the

maximum sentence available to a person who

distributes any quantity of cocaine base. To

support the extra 22 months, the jury would have

had to conclude that Garrott conspired to

distribute, or possessed with intent to

distribute, only 5 grams of cocaine base. 21

U.S.C. sec.841(b) (1)(C). It seems to us unlikely

that a jury would have found a lesser amount,

given the findings the district judge made in

sentencing Garrott. See United States v. Jackson,

No. 98-2696 (7th Cir. Jan. 10, 2001); United

States v. Mietus, No. 99-3535 (7th Cir. Jan. 22,

2001). Moreover, even then, Garrott could achieve

success only if Apprendi applies retroactively on

collateral attack under Teague v. Lane, 489 U.S.

288 (1989), which no appellate court has held.

See Talbott v. Indiana, 226 F.3d 866 (7th Cir.

2000).

 Neither the Apprendi argument nor any of

Garrott’s other constitutional issues can be

deemed a "substantial" claim. We therefore again

decline to issue a certificate of appealability.