United States v. Bovie , 28 F. App'x 734 ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 31 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Respondent-Appellee, No. 01-1097
v. (D. Colorado)
KIRK BOVIE, (D.C. No. 98-S-2673)
Petitioner-Appellant.
ORDER AND JUDGMENT *
Before HENRY , BRISCOE , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for decision on the briefs without oral
argument. See Fed. R. App. P. 34(f). The case is therefore submitted without
oral argument.
Kirk A. Bovie, a federal prisoner appearing pro se, seeks a certificate of
appealability regarding the denial of his motion to vacate, set aside, or correct his
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
sentence, pursuant to 28 U.S.C. § 2255. We deny a certificate of appealability
and dismiss the appeal.
Mr. Bovie was convicted by a jury of nine counts of drug-related charges
stemming from his participation in a cocaine distribution organization. He was
sentenced to 156 months of imprisonment on each count, to be served
concurrently. Mr. Bovie’s conviction and sentence were affirmed on direct
appeal.
On December 4, 1998, Mr. Bovie filed a § 2255 motion that raised
numerous claims, including ineffective assistance of counsel. On November 8,
2000, the district court rejected the ineffective assistance of counsel claim,
determined the remaining claims were procedurally barred, and denied the § 2255
motion.
Mr. Bovie next filed a motion to reconsider pursuant to Fed. R. Civ. P.
59(e). However, that motion did not request reconsideration of the issue
determined in the court’s November 8, 2000, order. Instead, Mr. Bovie’s motion
to reconsider raised a new claim pursuant to Apprendi v. New Jersey , 530 U.S.
466 (2000). The district court ruled that this new claim would require a new §
2255 motion, which Mr. Bovie could not bring without first obtaining permission
from this court to file a second or successive § 2255 motion. See 28 U.S.C. §§
2244(b)(3), 2255. Thus, the district court denied the motion to reconsider.
-2-
Because Mr. Bovie failed to obtain our authorization, the district court
lacked jurisdiction to decide his Rule 59(e) motion. We have held that a
petitioner may not circumvent the restrictions on filing second or successive
petitions by filing a post-judgment motion pursuant to Rule 60(b). See Lopez v.
Douglas , 141 F.3d 974, 975-76 (10th Cir. 1998) (per curiam) (holding that
petitioner’s Rule 60(b)(6) motion was an implied application under 28 U.S.C. §
2244(b)(3)(A) for leave to file a second habeas petition pursuant to § 2254 in the
district court); United States v. Sternberg , No. 00-3065, 2001 WL 170479, **1-2
(10th Cir. Feb. 21, 2001) (holding Rule 60(b)(6) motion may not circumvent the
restrictions on filing second or successive petition in a § 2255 proceeding). We
see no distinction between the Rule 60(b)(6) motions in those cases and the Rule
59(e) motion filed by Mr. Bovie here. See Bisaccia v. United States , Nos. 97 CV
6683, 3659, 2001 WL 1677747, at *1 (E.D.N.Y. Sept. 18, 2000) (“Rule 59 is no
more available than Rule 60 as a vehicle for circumventing the statutory bar to
successive § 2255 petitions.”).
We therefore construe Mr. Bovie’s motion as an implied application to file
a second or successive motion under 28 U.S.C. § 2255. In order to obtain
authorization from this court to file a second § 2255 motion in the district court,
Mr. Bovie must make the requisite showing under 28 U.S.C. § 2255. Specifically,
he must show: “(1) newly discovered evidence that, if proven and viewed in light
-3-
of the evidence as a whole, would be sufficient to establish by clear and
convincing evidence that no reasonable factfinder would have found [him] guilty
of the offense; or (2) a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was previously unavailable.” 28
U.S.C. § 2255. Following a review of Mr. Bovie’s implied application, we
determine his application does not meet the requirements under § 2255.
The requirement that a new rule of constitutional law is made retroactive to
cases on collateral review is “satisfied only if [the Supreme Court] has held that
the new rule is retroactively applicable to cases on collateral review.” Tyler v.
Cain , 121 S. Ct. 2478, 2482 (2001) (interpreting 28 U.S.C. § 2244(b)(2)(A)); see
also Browning v. United States , 241 F.3d 1262, 1266 (10th Cir. 2001) (“We thus
look to the Supreme Court to see whether it has made the rule retroactive to cases
on collateral review . . . .”). The rule announced in Apprendi has not yet been
made retroactive to cases on collateral review by the Supreme Court, and thus it
may not be used as a basis for second or successive habeas applications. See
Daniels v. United States , No. 00-6298, 2001 WL 709103, at *2 (Jun. 25, 2001)
(“Under current habeas law, therefore, applications to file second or successive
habeas petitions based on Apprendi will be dismissed until such time as the
Supreme Court chooses specifically to declare the new rule applicable to cases on
collateral review.”) (citing Browning , 241 F.3d at 1266-67).
-4-
Accordingly, we VACATE the district court’s December 27, 2000 order
denying Mr. Bovie’s Rule 59(e) motion, and DENY Mr. Bovie’s implied
application for leave to file a second or successive § 2255 motion in the district
court and his request for a certificate of appealability
Entered for the Court,
Robert H. Henry
Circuit Judge
-5-