F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 1 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 04-3409
v. (D.C. Nos. 04-CV-3136-WEB and
99-CR-10016-WEB)
BRYAN E. TISDALE, (D. Kan.)
Defendant - Appellant.
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, HENRY, and TYMKOVICH, Circuit Judges.
Defendant-Appellant Bryan E. Tisdale, a federal prisoner appearing pro se,
seeks a certificate of appealability (“COA”) allowing him to appeal the district
court’s order denying relief on his habeas petition pursuant to 28 U.S.C. § 2255.
Because Mr. Tisdale has failed to make a “substantial showing of the denial of a
constitutional right” as required by 28 U.S.C. § 2253(c)(2), we deny his request
and dismiss his appeal.
Mr. Tisdale pleaded guilty to knowingly and intentionally possessing with
the intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1). On
November 18, 1999, the district court sentenced Mr. Tisdale to 365 months’
imprisonment. We affirmed the conviction, but remanded for resentencing so the
district court could decide whether the sentence should run consecutive to,
concurrent with, or partially concurrent with a state sentence. United States v.
Tisdale, 248 F.3d 964, 984 (10th Cir. 2001). Mr. Tisdale then appealed from the
remand sentence, and we affirmed. United States v. Tisdale, No. 01-3380, 2003
WL 295605 (10th Cir. Feb. 12, 2003). In his § 2255 petition, Mr. Tisdale claimed
that counsel was ineffective for (1) failing to demonstrate that a search warrant
was not supported by probable cause, (2) not raising an Apprendi challenge to an
indictment that lacked a quantity term at sentencing or on direct appeal, and (3)
not raising an incorrectly calculated criminal history score at sentencing or on
direct appeal. In his traverse, he claimed that the government failed to prove
intent to distribute, instead it merely proved possession. The district court
rejected these claims. R. Doc. 110.
Mr. Tisdale seeks a COA on two issues. First, he argues that the district
court violated Fed. R. Crim. P. 11(b)(3) by failing to determine whether a factual
basis was present before entering his guilty plea. Second, Mr. Tisdale claims that
resentencing is required pursuant to United States v. Booker, ___ U.S. ___, 125 S.
Ct. 738 (2005).
First, with regard to Mr. Tisdale’s claim that the district court failed to find
a factual basis to support his guilty plea, this is a claim that the plea was not
-2-
knowing and voluntary. Not having raised such a claim on direct appeal, it is
procedurally defaulted unless Mr. Tisdale can show cause and prejudice, or a
fundamental miscarriage of justice. Bousley v. United States, 523 U.S. 614,
621-22 (1998). After reviewing the plea colloquy where the charge was read and
Mr. Tisdale admitted he possessed 936.79 grams of crack cocaine, the district
court’s procedural ruling, specifically that Mr. Tisdale cannot show prejudice or a
fundamental miscarriage of justice, and hence the claim is procedurally barred, is
not reasonably debatable. See I R. Doc. 105, Attach C at 4-5.
Second, Mr. Tisdale argues that resentencing is required pursuant to
Booker. However, we have previously decided that, in light of Booker, “Blakely
does not apply retroactively to initial § 2255 motions.” United States v. Price,
No. 04-7058, 2005 WL 535361, at *1 (10th Cir. Mar. 8, 2005). Because Mr.
Tisdale’s convictions were already final when Blakely was decided, neither
Blakely nor Booker require remand for resentencing. Id. at 5.
We DENY Mr. Tisdale’s request for a COA and DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
-3-