United States v. Cheek , 302 F. App'x 816 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
December 11, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 08-5066
v. (D.C. Nos. 05-CV-584-K;
00-CR-157-K)
SEVERETT ORVAL CHEEK, (N.D. Okla.)
Defendant - Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges.
Defendant Severett Orval Cheek, a federal prisoner appearing pro se, 1 seeks
*
This Order is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however,
for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R.
32.1. After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in the determination of this matter. See Fed. R. App. P. 34(a). The
case is therefore ordered submitted without oral argument.
1
Because Mr. Cheek is proceeding pro se, we review his pleadings and
filings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Howard v.
U.S. Bureau of Prisons, 487 F.3d 808, 815 (10th Cir. 2007).
a certificate of appealability (COA) that would allow him to appeal from the
district court’s dismissal of his motion under 28 U.S.C. § 2255 to vacate, set
aside, or correct his sentence. See 28 U.S.C. § 2253(c)(1)(B). We will issue a
COA only if Mr. Cheek makes “a substantial showing of the denial of a
constitutional right.” Id. § 2253(c)(2). To make this showing, he must establish
“that reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted).
Because the district court rejected the § 2255 motion on procedural
grounds, Mr. Cheek must demonstrate both “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.” Id. “Where a plain procedural bar is
present and the district court is correct to invoke it to dispose of the case, a
reasonable jurist could not conclude either that the district court erred in
dismissing the petition or that the petitioner should be allowed to proceed
further.” Id.
As outlined by the district court, Mr. Cheek’s conviction became final on
March 4, 2002; he did not file his § 2255 motion until October 11, 2005.
Accordingly, the district court determined that his motion was time-barred under
the statutory provision now designated as 28 U.S.C. § 2255(f)(1). A one-year
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statute of limitations generally applies to § 2255 motions:
The limitation period shall run from the latest of--
(1) the date on which the judgment of conviction becomes final;
[or]
....
(3) the date on which the right asserted was initially recognized
by the Supreme Court, if that right has been newly recognized by
the Supreme Court and made retroactively applicable to cases on
collateral review[.]
28 U.S.C. § 2255(f).
Mr. Cheek argues that his motion is timely under § 2255(f)(3) because it was
filed within one year of the Supreme Court’s decision in United States v. Booker, 543
U.S. 220 (2005). Mr. Cheek’s citation to Dodd v. United States, 545 U.S. 353(2005), is not on point. In Dodd, the Supreme Court explained that while the §
2255(f)(3) one-year limitation period does begin to run on the date that the right
asserted was initially recognized by the Supreme Court, a federal prisoner may take
advantage of that date only if the asserted right also has been made retroactively
available to cases on collateral review. Id. at 358-59. As the district court correctly
observed, neither the Supreme Court nor this Circuit has made Booker retroactively
applicable to cases on collateral review. Thus, Booker does not serve as a basis for
tolling or restarting Mr. Cheek’s statute of limitations. See United States v. Bellamy,
411 F.3d 1182, 1184, 1186-88 (10th Cir. 2005) (“Booker does not apply retroactively
to criminal cases that became final before its effective date of January 12, 2005.”).
The district court’s dismissal of Mr. Cheek’s § 2255 motion as time-barred is
not reasonably debatable. For substantially the same reasons provided by the district
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court, we accordingly DENY Mr. Cheek’s request for a COA and DISMISS his
appeal.
Entered for the Court
Jerome A. Holmes
Circuit Judge
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