Opinion
Case No. 03-20041-01-JWL.
November 2, 2005
ORDER
On September 7, 2005, the court entered an order denying Mr. Walton's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. Mr. Walton has now filed a notice of appeal. Thus, the court considers whether it is appropriate to grant a certificate of appealability (COA) on any issues raised in Mr. Walton'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. Walton sought to have his sentence vacated in light of the Supreme Court's decisions in Blakely v. Washington, 124 S. Ct. 2531 (2004) and United States v. Booker, 125 S. Ct. 738 (2005). Recent Tenth Circuit precedent clearly establishes that he is not entitled to a COA on this issue as neither Blakely nor Booker applies retroactively to Mr. Walton'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.