F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
May 22, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
__________________________ Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
v. No. 05-6151
(W .D. Oklahoma)
CARLOS DION HISHAW , (D.Ct. No. CIV-04-28-T)
Defendant - Appellant.
____________________________
OR DER DENY ING CERTIFICATE O F APPEALABILITY
A ND DISM ISSIN G A PPLIC ATIO N
Before KELLY, O’BRIEN, and TYM KOVICH, 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 Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Carlos Dion Hishaw, a federal prisoner proceeding pro se, 1 filed a 28
U.S.C. § 2255 motion to vacate, set aside or correct his sentence. The district
court dismissed the motion as untimely. Hishaw then filed a request for a
certificate of appealability (COA), which the court denied. It also certified that
1
Pro se pleadings are liberally construed. Ledbetter v. City of Topeka, Kan., 318
F.3d 1183, 1187 (10th Cir. 2003).
the appeal was not taken in good faith, thus denying Hishaw the right to proceed
on appeal in forma pauperis (ifp). In this court, Hishaw renews his requests for
COA and for leave to proceed ifp. See 28 U.S.C. § 2253(c)(1)(B); F ED . R. A PP . P.
22(b)(1), 24(a)(5).
Background
In February 1999, Hishaw was convicted by a jury of numerous drug
offenses and possession of a firearm. On September 30, 1999, he was sentenced
to concurrent terms of 360 months imprisonment on all but the firearm charge, for
which he received a concurrent sentence of 120 months imprisonment. His
conviction was affirmed on direct appeal, United States v. Wilson, 244 F.3d 1208
(10th Cir. 2001), and on October 1, 2001, the United States Supreme Court denied
his petition for a writ of certiorari. Hishaw v. United States, 534 U.S. 882 (2001).
H ishaw ’s § 2255 motion was filed on January 12, 2004, more than two
years after his conviction became final. The district court dismissed the motion
as barred by the one-year statute of limitations set forth in 28 U.S.C. § 2255. 2
Thereafter, the district court denied his request for a COA. It also denied
Hishaw’s request to proceed ifp on appeal, finding Hishaw had not “presented a
reasoned, nonfrivolous argument on appeal and that the appeal [was] not taken in
2
Paragraph 6 of § 2255 provides: “A 1-year period of limitation shall apply to a
motion under this section. The limitation period shall run from the latest of—(1) the date
on which the judgment of conviction becomes final . . . .”
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good faith.” (R. Doc. 611 at 2.) See 28 U.S.C. § 1915(a)(1), (a)(3); F ED . R. A PP .
P. 24.
Certificate of Appealability
A COA is a jurisdictional pre-requisite to our review. M iller-El v.
Cockrell, 537 U.S. 322, 336 (2003). W e will issue a CO A only if Hishaw makes
a “substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). To make this showing, he must establish that “reasonable jurists
could debate whether . . . the petition should have been resolved [by the district
court] in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Slack v. M cDaniel, 529 U.S. 473, 484 (2000)
(quotations omitted). Insofar as the district court dismissed his habeas petition on
procedural grounds, Hishaw must demonstrate both that “jurists of reason would
find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Id. “W here a plain procedural
bar is present and the district court is correct to invoke it to dispose of the case, a
reasonable jurist could not conclude either that the district court erred in
dismissing the petition or that the petitioner should be allowed to proceed
further.” Id.
W e review the district court's factual findings for clear error and its legal
conclusions de novo. English v. Cody, 241 F.3d 1279, 1282 (10th Cir. 2001).
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The district court correctly found Hishaw’s motion was time-barred. Hishaw’s
sentence became final on October 1, 2001, when the Supreme Court denied his
petition for a writ of certiorari. See United States v. Willis, 202 F.3d 1279,
1280-81 (10th Cir. 2000). His § 2255 motion was filed on January 12, 2004, well
past the one year statute of limitations.
Hishaw attempts to avoid this result by arguing an intervening change in
law rendered his sentence unconstitutional. Specifically, he claims Apprendi v.
New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296
(2004), require the quantity of drugs used to enhance his sentence beyond the
twenty-year maximum to be found by a jury beyond a reasonable doubt. Because
the amount of drugs used to enhance his sentence was not found by a jury, he
argues his sentence is unconstitutional and he is “actually innocent”— not of the
underlying crimes themselves but of possessing the amount of drugs resulting in
the enhancement to his sentence. He also asserts his counsel was ineffective for
failing to raise this issue at sentencing or on direct appeal. Finally, he asserts this
is a miscarriage of justice.
Hishaw’s arguments fail because this issue was addressed on direct appeal.
Apprendi was decided while Hishaw’s case was pending on appeal and Hishaw
submitted a supplemental brief addressing its applicability. Wilson, 244 F.3d at
1214, 1220 n.7. In affirming Hishaw’s convictions, we acknowledged the
enhancement of his sentence above the statutory maximum violated the
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procedures set forth in Apprendi. Wilson, 244 F.3d at 1220 n.7. W e analyzed the
issue under the plain error doctrine and concluded the error did not meet the
fourth prong of the doctrine, because it did not “seriously affect the fairness,
integrity or public reputation of judicial proceedings.” Id. (quotations omitted).
[T]he omission of an essential element of an offense from jury
consideration does not seriously affect the fairness or integrity of a
proceeding if the evidence related to that element was overw helming.
This is particularly true where a trial court follows procedures that
were universally considered fair at the time of trial . . . Here . . . the
evidence was overwhelming. M r. Hishaw’s sentence could be
enhanced to thirty years upon a finding of only five grams of crack
cocaine--in contrast, trial evidence proved his involvement with over
six kilograms of the drug, over a thousand times more than the
necessary amount. Therefore we find no plain error in this case . . . .
Id. (citations omitted).
The subsequent decision in Blakely affords Hishaw no relief. Blakely did
not address the Federal Sentencing Guidelines pursuant to which Hishaw was
sentenced. Blakely, 542 U.S. at 305 n.9. Blakely does not apply retroactively to
convictions that were already final at the time it w as decided in 2004. United
States v. Price, 400 F.3d 844, 849 (10th Cir.), cert. denied, 126 S.Ct. 731 (2005).
Hishaw’s convictions were final over two years before Blakely was decided.
Hishaw has failed to raise any allegations warranting the application of
equitable tolling in this case. See Gisbon v. Klinger, 232 F.3d 799, 808 (10th Cir.
2000) (equitable tolling of statute permitted in only rare and exceptional
circumstances); accord United States v. Willis, 202 F.3d at 1281 n.3. His § 2255
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motion was untimely. The district court’s order of dismissal is not reasonably
debatable. Slack, 529 U.S. at 484. Hishaw has failed to make a sufficient
show ing that he is entitled to a C OA.
IFP M otion
A prisoner seeking leave from this court to proceed ifp must show “the
existence of a reasoned, nonfrivolous argument on the law and facts in support of
the issues raised on appeal.” DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th
Cir. 1991). In denying Hishaw’s motion to proceed ifp on appeal, the district
court found he had not “presented a reasoned, nonfrivolous argument on appeal
and that the appeal [was] not taken in good faith.” (R. Doc. 611 at 2.) After
review ing Hishaw’s contentions, we adopt the district court’s finding that this
appeal is not taken in good faith. Coppedge v. United States, 369 U.S. 438, 446
(1962), we adopt it.
Based on the above, we DENY Hishaw’s request for a COA and dismiss his
application. W e also DENY Hishaw’s motion to proceed ifp and order him to
immediately remit the full amount of the filing fee. W e remind him of his
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obligation to pay the filing fee even on an appeal that has been dismissed.
Entered by the C ourt:
Terrence L. O ’Brien
United States Circuit Judge
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