F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
September 23, 2005
TENTH CIRCUIT
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 05-8021
v. (D.C. Nos. 03-CV-206-ABJ and 00-
CR-175-02-ABJ)
LARRY MESE, (D. Wyoming)
Defendant-Appellant.
ORDER
Before EBEL, McKAY, and HENRY, Circuit Judges.
After examining Petitioner’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
This is a pro se 28 U.S.C. § 2255 prisoner appeal. Defendant was
convicted of conspiracy to distribute more than fifty grams of methamphetamine
in violation of 21 U.S.C. § 846. He appealed the legality of his sentence,
alleging, inter alia, that it violated the principles articulated in Apprendi v. New
Jersey, 530 U.S. 466 (2000). We affirmed his conviction and sentence on
March 5, 2002. United States v. Mese, 41 Fed. Appx. 152 (10th Cir. 2002).
Thereafter, Defendant filed a § 2255 motion with the district court alleging
ineffective assistance of counsel because his attorney failed to advise Defendant
to proceed to trial on stipulated facts and did not prepare him for a conviction.
Before the district court ruled on the motion, Defendant sought permission to
amend his motion in light of the then-recent Supreme Court decision in Blakely v.
Washington, 542 U.S. 296 (2004), which was denied. The district court noted,
however, that “Mr. Mese will be able to seek certification to file a second motion
under § 2255” if Blakely is given retroactive applicability. Rec., Vol. I, Tab 13,
at 3. The district court ultimately denied Defendant’s § 2255 motion.
The district court also denied Petitioner’s request for a certificate of
appealability. The issues Defendant now raises are the same as addressed by the
district court.
He has renewed that request with this court. In order for us to grant a
certificate of appealability, Petitioner must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2003). To do so,
Petitioner must 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) (internal
quotations and citation omitted).
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We have carefully reviewed the briefs, the district court’s disposition, and
the record on appeal. Nothing in the facts, the record on appeal, or Petitioner’s
brief raises an issue which meets our standard for the grant of a certificate of
appealability. For substantially the same reasons as set forth by the district
court’s July 27, 2004, and January 18, 2005, orders, we cannot say “that
reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner.” 1 Id.
We DENY Petitioner’s request for a certificate of appealability and
DISMISS the appeal.
Entered for the Court
Monroe G. McKay
Circuit Judge
1
Our decision is reinforced by this circuit’s opinion in United States v.
Price, where we held that Blakely is not a watershed rule of law entitled to
retroactive effect to initial § 2255 motions. 400 F.3d 844, 849 (10th Cir. 2005).
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