United States v. Barrett , 161 F. App'x 755 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 14, 2005
TENTH CIRCUIT
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee, Nos. 05-6149 and 05-6193
v. (W.D. of Okla.)
RICHARD ALLAN BARRETT, (D.C. Nos. CV-05-239-C and
97-CR-44-C)
Defendant-Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges. **
Defendant-Appellant Richard Allan Barrett, a federal prisoner appearing
pro se, filed a petition for writ of habeas corpus in the district court for the
Western District of Oklahoma pursuant to 28 U.S.C. § 2255. He appeals (1) the
district court’s dismissal of his petition as untimely; and (2) the court’s decision
to construe a later filing as a successive § 2255 petition, as opposed to a Rule
*
This order is not binding precedent, except under the doctrines of law of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; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
**
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.
60(b)(4) motion. Because Barrett has not made a substantial showing of a denial
of a constitutional right, 28 U.S.C. § 2253(c)(2), and because we agree with the
district court that Barrett’s second filing was properly construed as a second or
successive § 2255 motion, we deny a COA and dismiss the appeal.
I. Background and Legal Issues
The parties are familiar with the facts of the case and we need not restate
them here. In cases such as this one where the district court denies a habeas
petition on procedural grounds without reaching the underlying constitutional
claim, a COA should issue if the movant shows that (1) reasonable jurists would
find it debatable whether the petition states a valid claim of the denial of the
constitutional right, and (2) reasonable jurists would find it debatable whether the
district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S.
473, 484 (2000).
A. Booker is Not Retroactively Applicable
In Barrett’s first petition before the district court, he asserted that his
sentence violated the tenets of United States v. Booker, 125 S. Ct. 738 (2005).
We agree with the district court that Barrett’s petition is well outside the one-year
limitations period set by the Antiterrorism and Effective Death Penalty Act
(AEDPA). See 28 U.S.C. § 2244(d)(1)(A). In cases such as this one, where
Barrett’s conviction became final prior to the enactment of AEDPA, the one-year
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limitations period runs from the Act’s effective date, which was April 24, 1996.
Hoggro v. Boone, 150 F.3d 1223, 1225-1226 (10th Cir. 1998). Because Barrett
did not file his initial petition until 2005, it is untimely.
Furthermore, even if the petition were not untimely, Booker does not apply
retroactively to initial habeas petitions in criminal cases that became final before
its effective date of January 12, 2005. See United States v. Bellamy, 411 F.3d
1182, 1184 (10th Cir. 2005). Barrett’s conviction and sentence became final in
1998, long before the Supreme Court issued Booker on January 12, 2005.
Accordingly, even if Barrett’s petition were timely, the relief he seeks is
unavailable.
B. Barrett’s Successive Petition was Properly Construed by the
District Court
Following the district court’s denial order, Barrett filed what he describes
as a Rule 60(b)(4) motion to relieve him from final judgment due to the judgment
being void. The district court construed the motion as a second or successive
habeas petition and transferred it to the Tenth Circuit. See 28 U.S.C. § 2255 (“[a]
second or successive motion must be certified . . . by a panel of the appropriate
court of appeals[.]”) On May 19, 2005, the Tenth Circuit dismissed the
transferred petition.
This court has held that “Rule 60(b) cannot be used to circumvent restraints
on successive habeas petitions.” Lopez v. Douglas, 141 F.3d 974, 975 (10th Cir.
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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). Thus, we treat a post-judgment
Rule 60(b) motion filed in a habeas proceeding as a second or successive motion
under AEDPA. See id. As such, the district court properly construed the filing as
a successive petition, which required the court to transfer the matter to the Tenth
Circuit.
To obtain our authorization to file a second § 2255 motion, Barrett was
required to make the requisite showing under AEDPA, which includes
establishing (1) newly discovered evidence that, if proven and viewed in the light
of the evidence as a whole, would be sufficient to establish by clear and
convincing evidence that no reasonable fact finder would have found him guilty
of the offense, see 28 U.S.C. § 2244(b)(2)(B); or (2) a new rule of constitutional
law, made retroactive to cases on collateral review by the Supreme Court, see 28
U.S.C. § 2244(b)(2)(A). As previously discussed, Barrett’s successive petition
does not rely on a new rule of constitutional law made retroactive to cases on
collateral review by the Supreme Court, because Booker is not retroactively
applicable to his case. Nor does Barrett bring to light new facts or cast doubt
upon the sufficiency of the evidence against him. He therefore failed to meet
AEDPA’s requirements for successive petitions.
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II. Conclusion
Accordingly, we DENY a COA and DISMISS these appeals. We deny
Barrett’s motions to proceed in forma pauperis.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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