Opinion
Case No. 02-20046-JWL.
January 23, 2006
MEMORANDUM ORDER
On April 7, 2005, the court entered an order denying Mr. Chappell's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. Mr. Chappell has now, more than nine months later, filed a motion for certificate of appealability (doc. 52). The motion is denied as it is untimely; Mr. Chappell's time for filing a notice of appeal has long passed. See Fed.R.App.P. 4(b)(1)(A).
The court would deny the motion on the merits in any event. A COA should issue if the applicant has "made a substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), which the Circuit has interpreted to require that the "petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." See id. (quoting Tennard v. Dretke, 124 S. Ct. 2562, 2569 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000))). In his § 2255 motion, Mr. Chappell sought to have his sentence vacated in light of the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005). Tenth Circuit precedent clearly establishes that he is not entitled to a COA on this issue as neither Booker nor Blakely v. Washington, 542 U.S. 296 (2004), applies retroactively to Mr. Chappell's motion and these cases have no bearing on his sentence. See United States v. Price, 400 F.3d 844, 845 (10th Cir. 2005) (denying motion for rehearing from panel's decision denying application for COA where habeas petition sought to vacate sentence based on Blakely and Blakely did not apply retroactively to initial § 2255 motions for collateral relief); United States v. Bellamy, 411 F.3d 1182, 1188 (10th Cir. 2005) ("Thus, like Blakely, Booker does not apply retroactively on collateral review, and [petitioner's] claim may not be brought in this initial habeas review under 28 U.S.C. § 2255.").
For the foregoing reason, the court declines to issue a certificate of appealability.
IT IS SO ORDERED.