United States v. Singleton , 216 F. App'x 735 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
February 8, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, No. 06-2127
v. (D. of N.M .)
SA M U EL J. SIN G LETO N , (D.C. No. CR-96-411-BB)
Defendant-Appellant.
OR DER DENY ING CERTIFICATE O F APPEALABILITY *
Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges. **
Samuel Singleton, a federal prisoner appearing pro se, was sentenced in
1998 to 241 months in prison after pleading guilty to drug conspiracy. He now
seeks a certificate of appealability (COA) to challenge the district court’s
dismissal of his “M otion to Preserve Apprendi/Blakely/Booker Issues If Ever
M ade Retroactive.” In light of this circuit’s policy of construing a pro se party’s
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
pleadings liberally, Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), we
will treat Singleton’s present motion as a petition for a writ of habeas corpus
under 28 U.S.C. § 2255.
To appeal the district court’s denial of his motion, Singleton must obtain a
COA by making “a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). He may make this showing by demonstrating that
“reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.” M iller-El v. Cockrell, 537 U.S. 322, 338 (2003).
Because w e find that Singleton has not made such a showing, we deny his request
for a COA and dismiss the appeal.
Singleton in essence argues that his sentence is illegal under United States
v. Booker, 543 U.S. 220 (2005), and Blakely v. Washington, 542 U.S. 296 (2004). 1
He acknowledges that these decisions do not apply retroactively to his case. See
U nited States v. Bellam y, 411 F.3d 1182, 1188 (10th Cir. 2005); United States v.
Price, 400 F.3d 844, 849 (10th Cir. 2005). Nevertheless, Singleton wants to
preserve his arguments for review if these decisions “are ever made retroactive”
to sentences imposed before they were issued. R. Vol. I, Doc. 1826 at 2. The
retroactivity of Booker and Blakely is not debatable among reasonable jurists
1
Singleton also appears to raise in this appeal allegations concerning a
search of his jail cell in M ay 1997. Singleton did not address these issues in his
motion before the district court, and we do not consider on appeal an issue not
considered below. Anderson v. Blake, 469 F.3d 910, 918 (10th Cir. 2006).
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because our precedent is plainly that they are not. See Bellamy, 411 F.3d at1187–88 & n.1; Price, 400 F.3d at 849. Therefore Singleton’s arguments cannot
support a C OA .
W e also note that Singleton’s motion is untimely. Under 28 U.S.C. § 2255,
a federal prisoner has one year from the latest of four dates to file a motion
attacking his sentence. Two of these dates are potentially relevant to Singleton:
(1) the date on which Singleton’s conviction became final, and (2) the date on
which the Supreme Court announced a newly recognized right, if that right has
been made retroactively applicable to cases on collateral review. 28 U.S.C.
§ 2255.
Singleton’s conviction became final on October 30, 2000, the date the
Supreme Court denied certiorari on his direct appeal. Hernandez v. United States,
531 U.S. 972 (2000) (denying certiorari for Singleton and nine co-defendants).
See Clay v. United States, 537 U.S. 522, 524–25 (discussing when a conviction
becomes final). Singleton filed his current motion in district court on January 9,
2006. Because more than one year had passed, Singleton is foreclosed from
attacking his sentence based on his conviction date.
Singleton seems to argue that the relevant date to begin tolling the statute
of limitations for his motion is January 12, 2005, the date the Supreme Court
issued Booker. However, 28 U.S.C. § 2255 expressly provides that a new one-
year period in which to collaterally attack a sentence is available based on a
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newly-issued Supreme Court decision only if that decision has been applied
retroactively. 2 Again, it is w ell-settled that Booker has no retroactive application.
Bellam y, 411 F.3d at 1186. Therefore the date of the Booker decision does not
apply to Singleton’s motion.
For the reasons stated, we DEN Y the application for CO A and DISM ISS
the appeal.
Entered for the Court
Timothy M . Tymkovich
Circuit Judge
2
The Supreme Court issued Blakely v. Washington on June 24, 2004.
Accordingly, even if Blakely were retroactively applied, Singleton’s motion
would be untimely because it w as filed more that one year after that date. See
Dodd v. United States, 545 U.S. 353, 357 (2005).
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