Antonio Jones v. United States , 203 F. App'x 324 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 3, 2006
No. 06-10161 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket Nos. 05-20379-CV-DLG & 02-20763 CR-DLG
ANTONIO JONES,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 3, 2006)
Before ANDERSON, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Antonio Jones, a pro se federal prisoner, appeals the district court’s denial of
his motion to vacate, set aside, or correct his sentence, which was filed pursuant to
28 U.S.C. § 2255. Jones, who is serving a 235-month sentence for being a felon in
possession of a firearm, filed the instant § 2255 motion, alleging that: (1) his
conviction and sentence were illegal because the indictment and jury instructions
in his case failed to state an offense under 18 U.S.C. § 924(e), and because the
§ 924(e) elements were not presented to the jury; (2) the district court plainly erred
by sentencing him as an Armed Career Criminal (“ACC”) because one of his prior
convictions was not a qualifying predicate conviction; and (3) his trial counsel was
ineffective because he failed to establish Jones’s standing at the suppression
hearing and to present rebuttal witnesses at trial. The magistrate judge issued a
report, which the district court adopted, recommending that Jones’s § 2255 motion
be denied. Specifically, the district court found, inter alia, that Jones’s first claim
was procedurally barred as (1) he had raised the issue with us on direct appeal, and
we had ruled against him, and (2) he did not allege a change in the law or
circumstances to justify reconsideration of the claim, and that Jones’s second claim
was barred because he was sentenced properly as an ACC.
Jones filed objections to the magistrate’s report, alleging that the magistrate
“totally disregarded” Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159
L.Ed.2d 403 (2004), United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160
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L.Ed.2d 621 (2005), and Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254,
161 L.Ed.2d 205 (2005), and arguing that, in light of those cases, he could not be
sentenced as an ACC because the indictment did not allege facts sufficient to
justify the enhancement, and he did not admit to such facts. The district court
denied those objections. Subsequently, the court granted a certificate of
appealability (“COA”) as to the issues that Jones raised in light of Blakely and
Booker.
On appeal, Jones first argues that he raised Blakely and Booker issues in his
§ 2255 motion, but did not cite to the cases specifically because the § 2255 form
instructed him not to argue or cite caselaw. Next, he asserts that, contrary to the
government’s assertions concerning procedural bar, we did not consider these
claims on direct appeal, where we addressed a claim based on Apprendi v. New
Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because his case
was decided prior to the Supreme Court’s decisions in Blakely, Booker, and
Shepard. Jones then argues the substance of his claim was that Booker requires
that the “serious drug offense” requirement of the ACC statute must be proven
beyond a reasonable doubt, which the government failed to do in his case with
regard to his prior convictions. He also contends that he did not have the requisite
number of prior convictions to qualify as an ACC. He asserts that, because he was
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unable to communicate with his attorney during the appeal process, his claim was
not procedurally barred by his failure to raise it on direct appeal. Finally, Jones
argues his ineffective assistance of counsel claims, requesting that we hear them
because he made the necessary substantial showing of a denial of a constitutional
right.
Issues outside of the scope of the COA are not properly before us. Murray
v. United States, 145 F.3d 1249, 1251 (11th Cir. 1998). Therefore, only the
Booker/Blakely claim is properly before us. When reviewing the district court’s
denial of a § 2255 motion, we review questions of law de novo and questions of
fact for clear error. Varela v. United States, 400 F.3d 864, 867 n.3 (11th Cir.), cert.
denied, 126 S.Ct. 312 (2005). In Varela, we held that “Booker’s [and Blakely’s]
constitutional rule falls squarely under the category of new rules of criminal
procedure that do not apply retroactively to § 2255 cases on collateral review.” Id.
at 686.
Because we have held that Blakely and Booker do not apply retroactively to
cases on collateral review, the district court did not commit reversible error by
denying Jones’s motion without specifically addressing such claims. Accordingly,
we affirm.
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AFFIRMED. 1
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Jones’s request for oral argument is denied.
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