Ovalle Marquez v. United States ( 2004 )

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-1711
LUIS ENRIQUE OVALLE MARQUEZ,
Petitioner, Appellant,
v.
UNITED STATES,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Raymond L. Acosta, Senior U.S. District Judge]
Before
Boudin, Chief Judge,
Selya and Lipez, Circuit Judges.
Luis E. Ovalle-Marquez on brief pro se.
H.S. Garcia, United States Attorney, Susan I. Torres,
Assistant United States Attorney, and Thomas F. Klumper, Assistant
United States Attorney, on brief for appellee.
April 6, 2004
Per Curiam. After denying appellant Luis Ovalle-
Marquez's 28 U.S.C. § 2255 motion, the district court issued a
certificate of appealability (COA) as to the issue whether Apprendi
v. New Jersey, 530 U.S. 466 (2000), may be applied retroactively.
This court has ruled that Apprendi "prescribes a new rule of
criminal procedure" that may not be applied retroactively to cases
on collateral review. See Sepulveda v. United States, 330 F.3d 55,
63 (1st Cir. 2003). This defeats the instant appeal. Contrary to
appellant's contentions, Bunkley v. Florida, 538 U.S. 835(2003)(per curiam), and the additional cases appellant cites do not
suggest that Sepulveda was wrongly decided.
We also reject appellant's suggestion that only the
Supreme Court may decide the retroactivity question.1 Sepulveda
remains the law in this circuit unless and until the Supreme Court
rules otherwise. Accordingly, the judgment of the district court
is affirmed. See Loc. R. 27(c).
1
See, e.g., Garcia v. United States, 278 F.3d 1210, 1212-13
& n.4 (11th Cir.), cert. denied, 537 U.S. 895 (2002), Ashley v.
United States, 266 F.3d 671, 673 (7th Cir. 2001), United States v.
Lopez, 248 F.3d 427, 431-32 (5th Cir. 2001), United States v.
Sanders, 247 F.3d 139, 146 n.4 (4th Cir. 2001).
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