United States v. Van Kirk

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
July 22, 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 05-3060
v. (D. Kansas)
SHEA W. VAN KIRK, (D.C. No. 02-CR-10185-01-MLB)

Defendant-Appellant.

ORDER *

Before EBEL, McKAY, and HENRY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Shea Van Kirk, a federal prisoner proceeding pro se, seeks a certificate of

appealability (“COA”) in order to challenge the district court’s denial of his

motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.

Because Mr. Van Kirk has failed to make “a substantial showing of the denial of a

*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
constitutional right,” 28 U.S.C. § 2253(c)(2), we deny his request and dismiss the

appeal.

In January 2004, Mr. Van Kirk pleaded guilty to a single count of being a

“felon in possession of firearms,” charge in violation of 18 U.S.C. § 922(g)(1).

Mr. Van Kirk did not appeal his conviction.

In October 2004, he filed a motion pursuant to § 2255 seeking to have the

district court correct his sentence pursuant to Blakely v. Washington, 124 S. Ct.

2531 (2004) and Apprendi v. New Jersey, 530 U.S. 466 (2000). He alleges that

his unenhanced sentencing range was 51-63 months, and that the district court

improperly imposed a 120-month sentence, based on findings made by a

preponderance of the evidence. The district court rejected this argument, finding

nothing to suggest Blakely and Apprendi apply to defendants seeking relief under

§ 2255 whose convictions were final when the Supreme Court decided Blakely in

June 2004.

We agree with the district court. We have held that neither Apprendi,

Blakely nor United States v. Booker, 125 S. Ct. 738 (2005), announced a new rule

of constitutional law made retroactive by the Supreme Court on collateral review.

See, e.g., United States v. Bellamy, No. 04-5145, 2005 WL 1406176, at *3 (10th

Cir. June 16, 2005) (concluding “Booker does not apply retroactively to initial

habeas petitions”); United States v. Price, 400 F.3d 844, 849 (10th Cir. 2005),

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(holding “Blakely does not apply retroactively to convictions that were already

final at the time the [Supreme] Court decided Blakely, June 24, 2004.”); United

States v. Mora, 293 F.3d 1213, 1219 (10th Cir. 2002) (stating that “Apprendi is

not a watershed decision and hence is not retroactively applicable to initial habeas

petitions”).

Accordingly, we DENY Mr. Van Kirk’s request for a COA, and DISMISS

the matter.

Entered for the Court,

Robert H. Henry
Circuit Judge

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