United States v. D'Armond , 173 F. App'x 662 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
March 28, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 05-3387
(District of Kansas)
v.
(D.C. Nos. 05-CV-3179-SAC and
98-CR-40076-SAC)
RAY LEE D’ARMOND, JR.,
Defendant-Appellant.
ORDER
Before MURPHY, SEYMOUR and McCONNELL, Circuit Judges.
Ray Lee D’Armond, Jr., a federal inmate appearing pro se, seeks to appeal
the district court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or
correct his sentence. The matter is before this court on D’Armond’s request for a
certificate of appealability (“COA”). 28 U.S.C. § 2253(c)(1)(B) (providing no
appeal may be taken from a “final order in a proceeding under section 2255”
unless the movant first obtains a COA). Because D’Armond has not made a
“substantial showing of the denial of a constitutional right,” this court denies his
request for a COA and dismisses this appeal. 28 U.S.C. § 2253(c)(2) (providing
that a COA “may issue . . . only if the applicant has made a substantial showing
of the denial of a constitutional right”).
On November 18, 1998, the grand jury issued a superseding indictment
charging D’Armond with seven counts of drug and firearm violations. D’Armond
eventually pleaded guilty to the first count, conspiracy to manufacture
methamphetamine, and the government agreed to dismiss the remaining counts.
On May 12, 2000, the district court entered judgment against D’Armond and
sentenced him to a 108-month term of imprisonment. D’Armond filed the instant
§ 2255 motion on April 18, 2005, asserting that the district court improperly
enhanced his sentence through the utilization of judge-found facts in violation of
United States v. Booker, 125 S. Ct. 738 (2005). The district court concluded
D’Armond’s motion was time-barred pursuant to the provisions of § 2255 para. 6.
In so ruling, the district court specifically rejected D’Armond’s contention that
his motion was timely because it was brought within one year of the Supreme
Court’s decision in Booker. See 28 U.S.C. § 2255 para. 6(3) (providing that a §
2255 motion is timely if it is filed within one year of “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”). The district court ruled that § 2255 para. 6(3) did
not apply because the Supreme Court has not made Booker retroactively
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applicable to cases on collateral review. Instead, as noted by the district court,
this court has specifically held that Booker does not apply on collateral review.
United States v. Bellamy, 411 F.3d 1182, 1188 (10th Cir. 2005).
This court cannot grant D’Armond a COA unless he can demonstrate “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) (quotations omitted). In evaluating whether
D’Armond has carried his burden, this court undertakes “a preliminary, though
not definitive, consideration of the [legal] framework” applicable to each of his
claims. Miller-El v. Cockrell, 537 U.S. 322, 338 (2003). D’Armond is not
required to demonstrate that his appeal will succeed to be entitled to a COA. He
must, however, “prove something more than the absence of frivolity or the
existence of mere good faith.” Id. (quotations omitted).
This court has reviewed D’Armond’s application for a COA and appellate
brief, the district court’s order, and the entire record on appeal pursuant to the
framework set out by the Supreme Court in Miller-El and concludes he is not
entitled to a COA. The district court’s resolution of D’Armond’s claim is not
reasonably subject to debate and the claim is not adequate to deserve further
proceedings. This court has specifically and explicitly held that Booker does not
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apply retroactively on collateral review. Bellamy, 411 F.3d at 1188.
Accordingly, § 2255 para. 6(3) does not apply and D’Armond’s motion is
untimely pursuant to § 2255 para. 6(1). D’Armond has not “made a substantial
showing of the denial of a constitutional right” and is not entitled to a COA. 28
U.S.C. § 2253(c)(2).
This court DENIES D’Armond’s request for a COA and DISMISSES this
appeal.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
By
Deputy Clerk
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