argument is “ ‘that a claim was “unacceptable to that particular court at that particular time.” ’ ” Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (quoting Engle v. Isaac, 456 U.S. 107, 130 n. 35, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982)). As Mr. Cook acknowledges in his petition, support for his claim could be found in In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), which had been decided at the time of his trial. Thus, Mr. Cook has not established cause sufficient to excuse his procedural default. Similarly, Mr. Cook’s petition does not assert a “fundamental miscarriage” of justice will occur unless we address his claim. Mr. Cook never argues he is actually innocent. See United States v. Cox, 83 F.3d 336, 341 (10th Cir.1996) (<HOLDING>). Consequently, his Apprendi argument is barred
holding in the administrative forfeiture context that jeopardy does not and cannot attach until one is made a party to a proceeding before a trier of fact having jurisdiction to try the question of guilt or innocence holding because petitioner has not made a colorable showing of factual innocence he cannot establish a fundamental miscarriage of justice holding that a petitioner did not make a prima facie showing of illegal discrimination because the petitioner needed to point to more facts than the number of africanamericans struck in order to establish a pattern of strikes supporting an inference of discrimination holding that a plaintiff can establish pretext only by showing that her employers explanation is a he holding that claimant did not establish good cause by showing he was unable to comprehend the determination