Opinion
Case No. 05-3179-SAC, 98-40076-01-SAC.
October 25, 2005
MEMORANDUM AND ORDER
This case comes before the court on the defendant's application for issuance of a certificate of appealability. Dk. 184. An appeal from a final order in a proceeding under 28 U.S.C. § 2255 may not be taken unless a judge or circuit justice issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). The certificate issues "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Defendant may make this showing by demonstrating that the issues he raises are debatable among jurists, that a court could resolve the issues differently, or that the questions presented deserve further proceedings. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
"Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (quotation marks, alteration, and citation omitted). When the court denies a § 2255 motion on procedural grounds, the petitioner must show "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack, 529 U.S. at 478 (2000) (construing 28 U.S.C. § 2253(c)).
In denying defendant's § 2255 motion, the court found his petition to be untimely. Dk. 181. The court reasoned that defendant's case became final in 2000, before Booker was decided, and that Booker's new rule of constitutional law does not apply retroactively to § 2255 motions. See United States v. Bellamy, 411 F.3d 1182 (10th Cir. 2005). Defendant now contends that the Tenth Circuit's holding in Bellamy is debatable among jurists, and that the "Tenth Circuit has not ruled on or against the Supreme Court's holding in Booker as being a Substantive holding and not a New Rule of Law holding." Dk. 184, p. 1. The court disagrees.
In Bellamy, the Tenth Circuit stated: "we have previously determined that Blakely provides a new rule of criminal procedure and is not subject to retroactive application on collateral review. See United States v. Price, 400 F.3d 844 (10th Cir. 2005)." Bellamy, 411 F.3d at 1186. It then joined "every court to examine the issue" in concluding that Booker represents a "procedural rule." Bellamy, 411 F.3d at 1187.
The court finds that jurists of reason would not find it debatable whether defendant's § 2255 petition states a valid claim of the denial of a constitutional right, and further finds that jurists of reason would not find it debatable whether this court was correct in its procedural ruling on defendant's untimely § 2255 motion.
IT IS THEREFORE ORDERED that defendant's motion for a certificate of appealability (Dk. 184) is denied.