F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
March 24, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 05-1340
v. (District of Colorado)
(D.C. Nos. 04-WM-1511 and
GEORGE C. JONES, JR., 98-CR-217-WM)
Defendant-Appellant.
ORDER
Before MURPHY, SEYMOUR and McCONNELL, Circuit Judges.
George C. Jones, Jr., appearing pro se, seeks to appeal the district court’s
denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence.
The matter is before this court on Jones’ request for a certificate of appealability
(“COA”). 28 U.S.C. § 2253(c)(1)(B) (providing no appeal may be taken from a
“final order in a proceeding under section 2255” unless the movant first obtains a
COA).
After a jury trial, Jones was found guilty of multiple counts of mail fraud,
in violation of 18 U.S.C. § 1341, and one count of wire fraud, in violation of 18
U.S.C. § 1343. He was sentenced to fifty-two months’ imprisonment and three
years’ supervised release. Jones’ sentence reflected the trial court’s application
of several adjustments and enhancements pursuant to the United States Sentencing
Guidelines.
Jones filed a direct appeal which was dismissed on September 10, 2001
because he was a fugitive from justice. He filed the instant § 2255 motion on
July 22, 2004, asserting the trial court improperly calculated his sentence through
the use of judge-found facts in violation of United States v. Blakely, 124 S. Ct.
2531 (2004) and United States v. Booker, 125 S. Ct. 738 (2005). The district
court concluded Jones’ motion was time-barred pursuant to the provisions of §
2255. In so ruling, the district court specifically rejected Jones’ contention that
his motion was timely because it was brought within one year of the Supreme
Court’s decision in Blakely. See 28 U.S.C. § 2255 para. 6(3) (providing that a §
2255 motion is timely if it is filed within one year of “the date on which the right
asserted was initially recognized by the Supreme Court, if that right has been
newly recognized by the Supreme Court and made retroactively applicable to
cases on collateral review”). The district court ruled that § 2255 para. 6(3) did
not apply because Blakely is not retroactively applicable to cases on collateral
review. See United States v. Price, 400 F.3d 844 (10th Cir. 2005); see also
United States v. Bellamy, 411 F.3d 1182, 1188 (10th Cir. 2005) (concluding
Booker does not apply retroactively on collateral review).
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In his brief, Jones has informed this court that he is no longer incarcerated.
Because the claims raised in his § 2255 motion challenge only his term of
incarceration and not his underlying conviction, his application for a COA is
moot. See Spencer v. Kemna , 523 U.S. 1, 7 (1998). Accordingly, we dismiss
Jones’ request for a COA and all outstanding motions as moot. Jones’ motion to
proceed in forma pauperis on appeal is denied .
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
By
Deputy Clerk
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