United States v. Barber

F I L E D
United States Court of Appeals
Tenth Circuit

May 23, 2006
UNITED STATES CO URT O F APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellee, No. 05-2384
v. (D.C. Nos. CIV-05-1124 JC/KBM and
CR-97-446 JC)
JASON CORY BARBER, (D . N.M .)

Defendant-Appellant.

OR DER DENYING CERTIFICATE
OF APPEALABILITY

Before KELLY, M cKA Y , and LUCERO, Circuit Judges.

Jason Cory Barber, a federal prisoner appearing pro se, requests a

certificate of appealability (“COA”) to appeal the district court’s denial of his

28 U.S.C. § 2255 habeas petition. For substantially the same reasons as set forth

by the district court, we D EN Y a COA and DISM ISS.

Having pled guilty to one count of possession with intent to distribute 100

grams or more of methamphetamine in violation of 21 U.S.C. § 841(b)(1)(B), and

sentenced to 188 months in prison follow ed by four years supervised release,

Barber appealed his sentence to this court. W e affirmed. See United States v.

Barber, No. 98-2106, 1999 W L 152294, at *1 (10th Cir. M ar. 22, 1999)

(unpublished). In concluding that his sentence was reasonable based on his plea
agreement, our court denied all relief. Id. His petition for certiorari was denied

on October 4, 1999. See Barber v. United States, 528 U.S. 864 (1999).

Following the Supreme Court’s decision in United States v. Booker, 543

U.S. 220 (2005), Barber filed the instant § 2255 petition in federal district court

raising three arguments. He argued that (1) his sentence must be vacated under

Booker; (2) AEDPA ’s statute of limitations provisions and restriction on filing

second or successive motions violates the Suspension Clause; and (3) his counsel

provide ineffective assistance.

The district court rejected Barber’s Booker argument because Booker is not

retroactively applicable on collateral review. It dismissed Barber’s ineffective

assistance of counsel claim on the finding that his counsel’s representation was

not constitutionally deficient. It declined to address Barber’s challenge to

AEDPA’s procedural requirements on the basis of its conclusion that Barber’s

substantive claims were meritless. A subsequent application for a COA was

denied. H aving failed to secure a COA from that court, Barber now seeks a COA

from us. 1

1
Barber’s petition was filed after April 24, 1996, the effective date of the
Antiterrorism and Effective D eath Penalty Act (“AEDPA”); as a result, AEDPA’s
provisions apply to this case. See Rogers v. Gibson, 173 F.3d 1278, 1282 n.1
(10th Cir. 1999) (citing Lindh v. M urphy, 521 U.S. 320 (1997)). AED PA
conditions a petitioner's right to appeal a denial of habeas relief under § 2255
upon a grant of a COA. 28 U.S.C. § 2253(c)(2). A COA may be issued “only if
the applicant has made a substantial showing of the denial of a constitutional
right.” § 2253(c)(2). This requires Barber to show “that reasonable jurists could
(continued...)

-2-
 In his COA request, Barber renews Booker requires that he be resentenced.

G iven our holding that B ooker does not apply retroactively on collateral review,

we deny this request. See United States v. Bellamy, 411 F.3d 1182, 1188 (10th

Cir. 2005).

Second, he contends that the district court erred by sua sponte dismissing

his § 2255 petition as untimely. Although the district court noted that Barber’s

petition appeared to be untimely, it expressly did not deny the petition on this

procedural ground. Rather, it denied his claims on the merits. As such, this

argument is irrelevant.

Barber’s application for a COA is DENIED. Barber’s motion to proceed

on appeal in forma pauperis is GR ANTED .

ENTERED FOR THE COURT

Carlos F Lucero
Circuit Judge

1
(...continued)
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. M cDaniel, 529 U.S. 473,
484 (2000) (quotations omitted). Because the district court denied Barber a COA ,
he may not appeal the district court’s decision absent a grant of COA by this
court.

-3-