United States v. Alexander

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
July 13, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee. No. 05-3063
v. District of Kansas
RONALD D. ALEXANDER, (D.C. Nos. 04-CV-3294-MLB and
99-CR-10096-02-MLB)
Defendant-Appellant,
ORDER
Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.
Ronald Alexander, a federal prisoner proceeding pro se, seeks a certificate
of appealability (COA) allowing him to appeal the denial of his petition for a writ
of habeas corpus, which was filed under 28 U.S.C. § 2255. The application is
DENIED.
Mr. Alexander was convicted of possession with intent to distribute five
grams or more of cocaine base in violation of 21 U.S.C. § 841. Applying a two-
level enhancement for possession of a dangerous weapon, see U.S.S.G. §
2D1.1(b)(1), and a two-level enhancement for obstructing or impeding the
administration of justice, see id. § 3C1.1, the district court sentenced Mr.
Alexander to 115 months’ imprisonment. We affirmed Mr. Alexander’s sentence.
See United States v. Alexander, 292 F.3d 1226 (10th Cir. 2002).
After the Supreme Court issued its decision in Blakely v. Washington, 542
U.S. 296 (2004), Mr. Alexander filed a petition for habeas corpus under 28 U.S.C.
§ 2255 seeking to vacate his sentence. Because Mr. Alexander filed his habeas
petition after the effective date of the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), his petition is subject to its provisions. See McGregor v.
Gibson, 248 F.3d 946, 951 (10th Cir. 2001). The district court held the petition in
abeyance pending the resolution of United States v. Booker, 125 S. Ct. 738(2005), and eventually denied relief. See Order of Jan. 13, 2005, R. Doc. 104, at
3.
To appeal the denial of his § 2255 petition, Mr. Alexander must first obtain
a COA, which may issue “only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). An applicant meets
this standard by establishing 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 citations
and quotation marks omitted).
The district court denied Mr. Alexander’s application for a COA. See
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Order of March 9, 2005. On April 27, 2005, Mr. Alexander filed an application
for a COA in the Tenth Circuit. He argues that the trial court violated his Sixth
Amendment rights under Blakely and Booker by enhancing his sentence based on
facts not admitted by him or found by a jury, and he maintains that Blakely and
Booker announced a new rule of constitutional law that applies retroactively to
cases on collateral review. App. for COA 2. This argument is directly foreclosed
by United States v. Bellamy, ___ F.3d ___, 2005 WL 1406176 (10th Cir. Jun. 16,
2005), in which we held that Booker does not apply retroactively to convictions
that were final at the time it was decided. See also United States v. Price, 400
F.3d 844, 849 (10th Cir. 2005) (holding that Blakely does not apply retroactively);
Leonard v. United States, 383 F.3d 1146, 1148 (10th Cir. 2004) (denying a motion
for authorization to file a second or successive habeas petition because the
Supreme Court had not held that Blakely applied retroactively to cases on
collateral review). The Supreme Court decided Booker on January 12, 2005. Mr.
Alexander’s conviction and sentence became final in 2002. See United States v.
Alexander, 292 F.3d 1226 (10th Cir. 2002). Because his sentence was final long
before Booker was decided, Mr. Alexander is not entitled to resentencing, and no
reasonable jurist would debate whether his § 2255 petition should have been
granted.
The request for a COA is therefore DENIED, and the petition is
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DISMISSED.
Entered for the Court,
Michael W. McConnell
Circuit Judge
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