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    This document is an order from the United States Court of Appeals for the Tenth Circuit denying Jason Cory Barber's request for a certificate of appealability to appeal the district court's denial of his 28 U.S.C. § 2255 habeas petition. The district court had rejected Barber's arguments that his sentence should be vacated under United States v. Booker, that AEDPA's statute of limitations and restrictions on successive petitions are unconstitutional, and that he received ineffective assistance of counsel. The Court of Appeals denies the COA request, finding that Booker does not apply retroactively and that the district court did not dismiss the petition as untimely.

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    Filed: 2006-05-23 Precedential Status: Precedential Docket: 05-2384

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    This document is an order from the United States Court of Appeals for the Tenth Circuit denying Jason Cory Barber's request for a certificate of appealability to appeal the district court's denial of his 28 U.S.C. § 2255 habeas petition. The district court had rejected Barber's arguments that his sentence should be vacated under United States v. Booker, that AEDPA's statute of limitations and restrictions on successive petitions are unconstitutional, and that he received ineffective assistance of counsel. The Court of Appeals denies the COA request, finding that Booker does not apply retroactively and that the district court did not dismiss the petition as untimely.

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    Public Domain
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    10 views3 pages

    United States v. Barber, 10th Cir. (2006)

    Uploaded by

    Scribd Government Docs
    This document is an order from the United States Court of Appeals for the Tenth Circuit denying Jason Cory Barber's request for a certificate of appealability to appeal the district court's denial of his 28 U.S.C. § 2255 habeas petition. The district court had rejected Barber's arguments that his sentence should be vacated under United States v. Booker, that AEDPA's statute of limitations and restrictions on successive petitions are unconstitutional, and that he received ineffective assistance of counsel. The Court of Appeals denies the COA request, finding that Booker does not apply retroactively and that the district court did not dismiss the petition as untimely.

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    of 3

    F I L E D

    United States Court of Appeals


    Tenth Circuit
    UNITED STATES CO URT O F APPEALS
    TENTH CIRCUIT

    May 23, 2006


    Elisabeth A. Shumaker
    Clerk of Court

    U N ITED STA TES O F A M ER ICA,


    Plaintiff-Appellee,
    v.
    JASON CORY BARBER,

    No. 05-2384
    (D.C. Nos. CIV-05-1124 JC/KBM and
    CR-97-446 JC)
    (D . N.M .)

    Defendant-Appellant.

    OR DER DENYING CERTIFICATE


    OF APPEALABILITY

    Before KELLY, M cKA Y , and LUCERO, Circuit Judges.

    Jason Cory Barber, a federal prisoner appearing pro se, requests a


    certificate of appealability (COA) to appeal the district courts denial of his
    28 U.S.C. 2255 habeas petition. For substantially the same reasons as set forth
    by the district court, we D EN Y a COA and DISM ISS.
    Having pled guilty to one count of possession with intent to distribute 100
    grams or more of methamphetamine in violation of 21 U.S.C. 841(b)(1)(B), and
    sentenced to 188 months in prison follow ed by four years supervised release,
    Barber appealed his sentence to this court. W e affirmed. See United States v.
    Barber, No. 98-2106, 1999 W L 152294, at *1 (10th Cir. M ar. 22, 1999)
    (unpublished). In concluding that his sentence was reasonable based on his plea

    agreement, our court denied all relief. Id. His petition for certiorari was denied
    on October 4, 1999. See Barber v. United States, 528 U.S. 864 (1999).
    Following the Supreme Courts decision in United States v. Booker, 543
    U.S. 220 (2005), Barber filed the instant 2255 petition in federal district court
    raising three arguments. He argued that (1) his sentence must be vacated under
    Booker; (2) AEDPA s statute of limitations provisions and restriction on filing
    second or successive motions violates the Suspension Clause; and (3) his counsel
    provide ineffective assistance.
    The district court rejected Barbers Booker argument because Booker is not
    retroactively applicable on collateral review. It dismissed Barbers ineffective
    assistance of counsel claim on the finding that his counsels representation was
    not constitutionally deficient. It declined to address Barbers challenge to
    AEDPAs procedural requirements on the basis of its conclusion that Barbers
    substantive claims were meritless. A subsequent application for a COA was
    denied. H aving failed to secure a COA from that court, Barber now seeks a COA
    from us. 1
    1

    Barbers petition was filed after April 24, 1996, the effective date of the
    Antiterrorism and Effective D eath Penalty Act (AEDPA); as a result, AEDPAs
    provisions apply to this case. See Rogers v. Gibson, 173 F.3d 1278, 1282 n.1
    (10th Cir. 1999) (citing Lindh v. M urphy, 521 U.S. 320 (1997)). AED PA
    conditions a petitioner's right to appeal a denial of habeas relief under 2255
    upon a grant of a COA. 28 U.S.C. 2253(c)(2). A COA may be issued only if
    the applicant has made a substantial showing of the denial of a constitutional
    right. 2253(c)(2). This requires Barber to show that reasonable jurists could
    (continued...)
    -2-

    In his COA request, Barber renews Booker requires that he be resentenced.


    G iven our holding that B ooker does not apply retroactively on collateral review,
    we deny this request. See United States v. Bellamy, 411 F.3d 1182, 1188 (10th
    Cir. 2005).
    Second, he contends that the district court erred by sua sponte dismissing
    his 2255 petition as untimely. Although the district court noted that Barbers
    petition appeared to be untimely, it expressly did not deny the petition on this
    procedural ground. Rather, it denied his claims on the merits. As such, this
    argument is irrelevant.
    Barbers application for a COA is DENIED. Barbers motion to proceed
    on appeal in forma pauperis is GR ANTED .

    ENTERED FOR THE COURT

    Carlos F Lucero
    Circuit Judge

    (...continued)
    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. M cDaniel, 529 U.S. 473,
    484 (2000) (quotations omitted). Because the district court denied Barber a COA ,
    he may not appeal the district courts decision absent a grant of COA by this
    court.
    -3-

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