U.S. v. Gaskin

Full title: United States of America, Plaintiff, v. James Gaskin, Defendant

Court: United States District Court, D. Kansas

Date published: Oct 27, 2005

Case No. 03-20013-JWL (D. Kan. Oct. 27, 2005)

Opinion

Case No. 03-20013-JWL.

October 27, 2005

ORDER

JOHN LUNGSTRUM, District Judge

On April 7, 2005, the court entered an order denying Mr. Gaskin's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. Mr. Gaskin has now filed a notice of appeal. While it is not entirely clear from Mr. Gaskin's notice whether he intends to appeal the court's denial of his § 2255 motion or whether he is pursuing a direct appeal of his sentence, the court, out of an abundance of caution, considers whether it is appropriate to grant a certificate of appealability (COA) on any issues raised in Mr. Gaskin's § 2255 motion. See Saiz v. Ortiz, 392 F.3d 1166, 1171 n. 3 (10th Cir. 2004) (construing notice of appeal as an application for a COA because a COA is a prerequisite to appealing the denial of a habeas petition). As explained below, the court declines to grant a COA.

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. Gaskin sought to have his sentence vacated in light of the Supreme Court's decision in Blakely v. Washington, 124 S. Ct. 2531 (2004). Recent Tenth Circuit precedent clearly establishes that he is not entitled to a COA on this issue as Blakely does not apply retroactively to Mr. Gaskin's motion and has 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).

For the foregoing reason, the court declines to issue a certificate of appealability.

IT IS SO ORDERED.